Claims Management Policy - NHS Gateshead
Transcript of Claims Management Policy - NHS Gateshead
Claims Management Policy v6
Policy No: RM23
Version: 6.0
Name of policy: Claims Management Policy
Effective from: 18/08/2015
Date ratified 14/08/2015
Ratified Patient Quality Risk and Safety Committee
Review date 01/08/2017
Sponsor Director of Nursing, Midwifery and Quality
Expiry date 13/08/2018
Withdrawn date
Unless this copy has been taken directly from the Trust intranet site (Pandora) there is no assurance that
this is the most up to date version
This policy supersedes all previous issues
Claims Management Policy v6 2
Version Control
Version
Release
Author /
reviewer
Ratified by /
authorised by
Date
Changes
(Please identify page no.)
1.0
Feb 2003 Board of Directors 26/02/2003
2.0
3.0
Nov 2006
Legal
Services
Manager
Board of Directors Nov 2006
4.0
Jan 2009
Legal
Services
Manager
PQRS Jan 2009
4.1 Feb 2010 Legal
Services
Manager
Director of Estates
and Risk
Management
05/02/2010
5.0 24/10/2012
Legal
Services
Manager
PQRS 20/07/2012 Change format into Trust
policy format
6.0 18/08/2015 Legal
Services
Manager
PQRS 14/08/2015 Re-write of policy
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Contents
Page
1. Introduction ........................................................................................................................................5
2. Policy scope ........................................................................................................................................5
3. Aim of policy .......................................................................................................................................5
4. Duties – roles and responsibilities ......................................................................................................5
4.1 Board Level Responsibility for Claims Management .............................................................5
4.2 Director of Nursing, Midwifery & Quality ..............................................................................5
4.3 Medical Director ....................................................................................................................5
4.4 Head of Risk Management .....................................................................................................6
4.5 Service Line Managers ...........................................................................................................6
4.6 Associate Directors and Clinical Leads ...................................................................................6
4.7 The Legal Services Manager...................................................................................................6
4.8 Legal Services Department ....................................................................................................6
4.9 All employees of the Trust ..................................................................................................... 7
4.10 QE Facilities and staff .............................................................................................................7
4.11 The NHSLA..............................................................................................................................7
5. Definitions ..........................................................................................................................................7
6. The management of claims ................................................................................................................7
6.1 Clinical Negligence Claims......................................................................................................7
6.1.1 Definition of a Clinical negligence Claim ................................................................7
6.1.2 Who can make a Claim? ………………………………………………………………………… ...........7
6.1.3 Pre-action ……………………………………………………….....................................................7
6.1.4 Disclosure Request ................................................................................................8
6.1.5 Investigation ...........................................................................................................9
6.1.6 The role of the NHS Litigation Authority ................................................................11
6.1.7 Letter of Notification ..............................................................................................12
6.1.8 Letter of Claim ........................................................................................................12
6.1.9 Letter of Response ..................................................................................................13
6.1.10 Proceedings ............................................................................................................14
6.1.11 Limitation................................................................................................................15
6.1.11.1 An Adult With Capacity ...........................................................................15
6.1.11.2 An Adult or Child Without Capacity.........................................................15
6.1.11.3 A Child ......................................................................................................15
6.1.11.4 A Deceased Patient ..................................................................................15
6.1.12 Acknowledgement of Service .................................................................................15
6.1.13 Defence...................................................................................................................15
6.1.14 Case Management Conference ..............................................................................16
6.1.15 Disclosure of Documents ........................................................................................16
6.1.16 Witness Statements ...............................................................................................17
6.1.17 Trial and Judgment .................................................................................................17
6.1.18 Links with Incidents, Risks and Complaints ............................................................17
6.2 Employee and Public Liability Claims and Miscellaneous Risk Pooling Claims .....................18
6.2.1 Definition ................................................................................................................18
6.2.2 Role of the NHSLA ..................................................................................................18
6.2.3 Receipt of notification of claims under LTPS ..........................................................19
6.2.3.1 Low Value EL / PL Personal Injury Claims ..................................................19
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6.2.3.2 EL/PL Claims not covered under the EL/PL Personal Injury Protocol ........20
6.2.3.3 Other claims covered under LTPS ..............................................................22
6.3 Inquests ..................................................................................................................................22
6.3.1 What is a Coroner? ...................................................................................................22
6.3.2 What do Coroners do? ..............................................................................................22
6.3.3 What is a Coroner’s investigation? ...........................................................................22
6.3.4 When should a death be reported to the Coroner? .................................................23
6.3.5 What will a Coroner do when a death is reported? ..................................................24
6.3.6 Post Mortem Examination ........................................................................................24
6.3.7 Inquest ......................................................................................................................24
6.3.8 Prevention of future deaths ......................................................................................26
6.3.9 Death of a Child .........................................................................................................26
6.3.10 Inquests and Civil Claims ...........................................................................................26
6.4 Miscellaneous Legal matters .................................................................................................26
6.5 Dissemination of Learning .....................................................................................................27
7. Training ...............................................................................................................................................27
8. Equality and diversity .........................................................................................................................27
9. Monitoring compliance with the policy .............................................................................................27
10. Consultation and review ....................................................................................................................27
11. Implementation of the policy (including raising awareness) .............................................................28
12. References ..........................................................................................................................................28
13. Associated documentation .................................................................................................................28
Appendix 1 Clinical negligence Flowchart ......................................................................................................29
Appendix 2 Low Value EL/PL Personal Injury Claims Flowchart .....................................................................31
Appendix 3 EL/PL Personal Injury Claims Flowchart .......................................................................................32
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Claims Management Policy
1. Introduction
It is generally accepted that society has become more litigious and the NHS finds itself increasingly
having to defend a variety of types of claims brought against it.
Gateshead Health NHS Foundation Trust (The Trust) is committed to ensuring:
1.1. Effective and timely investigation, response and management of Inquests, claims that involve
allegations of clinical negligence, personal injury loss or damage to property or any other
claims (Claims);
1.2. That the Trust learns from Claims and Inquests to prevent reoccurrence and monitors the
effectiveness of the relevant procedures;
1.3 That the Trust staff are supported during the Inquest and claims processes.
This policy is based on guidance from the NHS Litigation Authority (NHSLA). Any future changes in
guidance will be followed and may supersede the procedures laid down in this policy. Any claims
not covered by the NHSLA will be dealt with on a case for case basis.
2. Policy scope
The policy covers all litigation and potential litigation against the Trust in respect of Claims and
Inquests and loss or damage to Trust property.
3. Aim of policy
To provide a framework in order to manage litigation and potential litigation covered under the
policy scope and to deal with other legal issues that may arise.
4. Duties – roles and responsibilities
4.1 Board level responsibility for Claims Management
Overall responsibility for risk management within the Trust rests with the Chief Executive.
This responsibility is delegated to the Director of Nursing, Midwifery and Quality.
4.2 Director of Nursing, Midwifery and Quality
The Director of Nursing, Midwifery and Quality will be advised of all employee liability and
public liability claims.
The Director of Nursing, Midwifery and Quality will be responsible for consulting with other
relevant Directors / senior members of staff to approve any defence documents,
admissions and levels of settlements.
The Director of Nursing, Midwifery and Quality will delegate day to day responsibility for
ensuring that proper arrangements are in place to deal with any Claims and Inquests to
Head of Risk Management.
4.3 Medical Director
The Medical Director will be advised of all clinical claims. The Medical Director will be
responsible for the approval of defence documents and any settlement offers in respect of
all clinical negligence claims where admissions are to be made.
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The Medical Director will also be informed of all notifications of Inquests involving the
Trust.
4.4 Head of Risk Management
The Head of Risk Management is responsible for ensuring that proper arrangements are in
place to deal with any Claims and Inquests. The Head of Risk Management will ensure that
the Chief Executive, the Patient Quality, Risk and Safety Committee (PQRS) and / or the
Trust Board are all kept advised of all major developments in this area.
The Head of Risk Management will delegate day to day responsibility for the conduct,
control and documentation of all Claims and Inquests to the Legal Services Manager.
4.5 Service Line Managers
Service Line Managers will be notified of all Claims and Inquests affecting their division /
department and may be required to provide documentation, support to staff and action
lessons learned from Claims and / or Inquests.
4.6 Associate Director and Clinical Leads
Associate Directors and Clinical Leads may be required to provide documentation, support
to staff and in-house comment in respect of allegations made against the Trust as part of
the Claims and Inquest processes.
4.7 Legal Services Manager
The Legal Services Manager is responsible for the conduct, control and documentation of
Claims and Inquests.
The procedures set out in this policy will be triggered upon receipt of correspondence that
a claim is contemplated or being pursued and notification of an Inquest into the death of a
patient.
Upon receipt of such correspondence the Legal Services Manager will liaise with the
relevant staff members to investigate into any allegations made and obtain requisite
information to deal with such matters.
When necessary the Legal Services Manager will also liaise with the Trust’s solicitors and
the NHSLA to ensure the matter is dealt with effectively.
Arrangements will be made that in the absence of the Legal Services Manager essential
claims management and Inquest activities are carried out.
4.8 The Legal Services Department
The Legal Services Department will, amongst other things:
4.8.1 Be responsible for maintaining a log of all new Claims and Inquests received;
4.8.2 Inform the Complaints Manager of details of all clinical negligence claims received
to enable complaint documentation to be provided for disclosure;
4.8.3 Be responsible for ensuring that any relevant pre-action protocols are followed;
4.8.4 Disclose medical records in relation to contemplated or actual litigation, within
timescales laid down in the Data Protection Act 1998 or the Access to Health
Records Act 1990;
4.8.5 Receive, acknowledge and process all new potential claims against the Trust;
4.8.6 Identify and arrange for the presentation of relevant records and other items;
4.8.7 Report potential claims to the NHSLA in accordance with its reporting procedures;
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4.8.8 Obtain in house comments in relation to the allegations received or to provide the
Coroner information with the circumstances leading up to the death of the patient.
4.9 All employees of the Trust
All employees of the Trust have a contractual responsibility to assist the Legal Services
Department in the investigation of Claims and Inquests.
4.10 QE Facilities and Staff
QE Facilities and its Staff have a responsibility to the Trust to assist and co-operate with the
Trust concerning allegations / incidents that involve them.
4.11 The NHSLA
See paragraphs (6.1.6, 6.2.2 and 6.3.10)
5. Definitions
Definitions are set out within the body of the policy
6. The management of claims
6.1 Clinical negligence claims
6.1.1 Definition of a Clinical Negligence Claim
A clinical negligence claim is defined for the purpose of this policy, and under
regulation 4 of the NHS (Clinical Negligence Scheme) regulations 1996, as “any
liability under tort owed to a third party in respect of or consequent upon personal
injury or loss arising out of or in connection with any breach of a duty of care owed
by that body to any person in connection with the diagnosis of any illness, or the
care or treatment of any patient, in consequence of any act or omission to act on
the part of a person employed or engaged by an NHS trust or health authority in
connection with any relevant function of that body.
6.1.2 Who can make a claim?
Any patient or their representatives (i.e executor; attorney) can make a Clinical
Negligence Claim against the Trust. The person bringing a claim is known as the
claimant (Claimant). The Claimant therefore may not be the individual who has
been harmed.
6.1.3 Pre-action
There are a number of steps that should be taken prior to the Claimant issuing
formal court proceedings against the Trust. Such steps are contained in what is
known as the Pre-action Protocol for the Resolution of Clinical Negligence Disputes
(Clinical Negligence Protocol).
The general aims of the Clinical Negligence Protocol are:
(a) To maintain and/or restore the patient/healthcare provider relationship in
an open and transparent way;
(b) To reduce delay and ensure that costs are proportionate; and
(c) To resolve as many disputes as possible without litigation.
If a Claimant is not legally represented they are still required to comply with the
Clinical Negligence Protocol as far as possible. The Trust will send the Claimant a
copy of the Clinical Negligence Protocol for their reference.
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If either party fails to comply with the Clinical Negligence Protocol, the court may
impose sanctions, such as costs being awarded against the party failing to comply.
It is therefore essential that the Trust follows the protocol and complies with the
deadlines set out.
6.1.4 Disclosure Request
Legal Services usually first become aware of a potential Clinical Negligence Claim
against the Trust upon receipt of a request for disclosure of the patient’s clinical
records. Such a request should be made in writing and should be made using the
Law Society and Department of Health approved standard forms. These forms can
be found annexed to the Clinical Negligence Protocol.
Any request for records by the Claimant should–
(a) Provide sufficient information to alert the Trust where an adverse outcome
has been serious or has had serious consequences or may constitute a
notifiable safety incident;
(b) Be as specific as possible about the records which are required for an initial
investigation of the claim; and
(c) Include a request for any relevant guidelines, analyses, protocols or policies
and any documents created in relation to an adverse incident, notifiable
safety incident or complaint.
This request is normally received from the Claimant’s solicitors but the request can
be made directly by the patient, the Claimant or the patient’s or Claimant’s
representatives. Legal Services will ensure that the correct authority has been
received prior to the release of any clinical records.
Upon receipt of a request for disclosure, Legal Services has 40 calendar days in
which to disclosure the clinical records. Clinical records include all records and are
not limited to those held in the main paper health records. They will include x-rays,
CT scans, test results etc.
Legal Services does not have access to all systems throughout the Trust and the
department is therefore reliant upon others to supply records to them for
disclosure. Letters are written to the relevant Service Line Manager(s) and it is their
responsibility to advise if any documentation is held on systems that Legal Services
cannot access and provide copies of such documentation. If this is to be delegated
by the Service Line Manager(s), Legal Services should be made aware of who to
contact. It is important that all relevant documentation is obtained to enable the
Trust to assess its liability and also fully comply with its disclosure requirements.
As standard, Legal Services disclose hard copy health records, WINDIP records,
Medway records, ICE records, Vital Pack records, radiology and physiotherapy
notes to the Claimant/Claimant’s solicitors. Other documentation may however be
disclosable on request, such as Datix incident forms, Root Cause Analysis (RCA),
complaints papers, Duty of Candour documentation etc.
Whilst Legal Services endeavour to review the content of the records to be
disclosed, letters will be sent to clinicians to advise as to whether they consider any
parts of the notes should be withheld. Examples of circumstances in which notes
can be withheld from disclosure include safeguarding issues or if it would cause
harm to the patient in releasing the information.
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If the Trust fails to provide the clinical records or an explanation for any delay
within 40 days, the Claimant or their solicitor can then apply to the court for an
order for pre-action disclosure. The court has the power to impose costs sanctions
for unreasonable delay in providing records.
The Claimant’s records are sent by recorded delivery or by courier to ensure
confidentiality is maintained.
The Data Protection Act 1998 allows the Trust to raise the following charges in
relation to the provision of the records:
£10 administration fee;
£10 fee for the provision of radiology discs
£30 for health records of over 80 pages, if under 80 pages, 35p is charged per page.
The maximum charge raised is therefore limited to a maximum of £50. Invoices are
raised by Legal Services, payment of which is monitored by Finance.
6.1.5 Investigation
The receipt of a request for disclosure of records which intimates a Clinical
Negligence Claim against the Trust (or receipt letter of claim or receipt of formal
court proceedings – see below) will trigger an immediate investigation by Legal
Services. The purpose of this investigation will be to determine whether the
potential claim has any merit and will assist the Legal Services Manager to consider
whether further in depth investigation is required. It also allows Legal Services to
notify Risk Management and / or other departments of any issues to enable them
to implement a plan to prevent a repeat incident from occurring.
Upon receipt of a request for disclosure of records which intimates a claim against
the Trust Legal Services will notify the Medical Director and the relevant Service
Line Manager(s) of the potential claim.
Legal Services will begin its investigation by searching the Trust’s Datix system to
obtain details of any incidents and/or complaints linked to the allegations. This
allows the Legal Services Manager to link incidents and complaints to claims
received. Any trends concerning such links will be discussed at CLIPA meetings and
highlighted to the Risk Management Team.
Legal Services will place reliance upon the content of Datix incident forms, RCAs,
complaint’s papers and any other attached documentation as part of its
investigations.
Legal Services will also contact the consultant(s) involved in the care of the
claimant at the time of the alleged negligence to obtain comments as to the
treatment provided, their involvement (if any), a preliminary response to the
allegations raised, whether they consider any of the treatment feel below the
acceptable standard of care, details of any junior medical staff involved in the
claimant’s care and confirmation that they are happy for the records to be
released.
If it is unclear which consultant was responsible for the care of the Claimant at the
time of the alleged negligence or if the relevant consultant has left the Trust, Legal
Services will contact the relevant Clinical Lead for their comments.
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A copy of the patient’s records will be sent to the consultant(s) to assist in
providing comments. Wherever possible, the records will be sent electronically by
email in order to minimise printing costs.
If it is considered that comments are required from more junior staff, the request
from Legal Services will be made either through the Services Line Manager in
respect of nursing staff or through the Clinical Lead in other circumstances. This is
to ensure that adequate support is provided to staff throughout the claims process.
It is important that staff understand that the claim is being pursued against the
Trust and not them personally.
In some circumstances the details of the allegations provided in the request for
disclosure may be very brief. In such circumstances, Legal Services will revert to the
Claimant/Claimant’s solicitors to request further information. If further information
is not forthcoming, it is appreciated that it may be difficult for clinicians to provide
in depth comments. Clinicians are therefore asked to simply comment on the
treatment provided, their involvement and whether any issues arose. Further
comments will be obtained as the claim progresses (see below).
Any comments provided are provided when litigation is in contemplation and are
being provided to legal advisers working for the Trust. As such, the comments will
be privileged i.e. will not be disclosable to the Claimant/Claimant’s solicitors.
Members of staff should therefore be open and honest about the circumstances
surrounding the allegations.
It is important that this privilege is maintained and that any such comments are not
inadvertently disclosed.
Any correspondence sent from or to Legal Services throughout the claims process
must not be filed within the health records. If clinicians wish to hold a copy these
must be held separately.
Clinicians will endeavour to provide comments to Legal Services within 3 weeks of
being contacted. If for any reasons comments cannot be provided within this
timescale Legal Services should be notified and provided with a date by which
comments will be provided.
If comments are not provided within a reasonable timescale Legal Services will
notify the Medical Director and the Director of Nursing, Midwifery and Quality.
The comments will be forwarded onto the Medical Director, the relevant Service
Line Manager(s) and the Trust’s solicitors to form an early view as to liability. The
Trust’s solicitors produce a preliminary analysis setting out a brief history of the
claimant’s treatment subject to the allegations, any issues with regards breach of
duty and causation, an assessment of the strength of the Trust’s defence on the
balance of probability, the level of damages likely to be awarded to the Claimant (if
successful) and the likely cost of defending the claim. The preliminary analysis is
sent to the Medical Director.
Although the receipt of a request for disclosure does not automatically result in
reporting to the NHS Litigation Authority, the Trust will be advised by its solicitors
as to whether the matter should be reported at an early stage.
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6.1.6 The role of the NHS Litigation Authority (NHSLA)
The NHSLA is a Special Health Authority set up under section 11 of the NHS Act
1977. Its date of commencement was 21 November 1995.
The NHSLA’s principle task is to administer schemes set up by the Secretary
of State to help NHS bodies pool the costs of any “loss of or damage to property
and liabilities to third parties for loss, damage to property and liabilities to third
parties for loss, damage or injury arising out of the carrying out of their functions.”
The NHSLA’s aims are to provide the highest possible standards of patient care and
to minimise the suffering resulting from any adverse incidents, which do
nevertheless occur. By defending unjustified actions robustly, settling justified
actions efficiently and contributing to the reduction of preventable incidents, costs
in relation to claims are minimised therefore maximising resources available for
patient care and improving the quality of patient care.
There are three schemes relating to Clinical Negligence Claims:
• The clinical negligence scheme for Trusts (CNST) which covers liabilities for
alleged clinical negligence where the original incident occurred on or after
1st
April 1995;
• The Existing Liabilities Scheme (ELS) which covers liabilities for clinical
negligence incidents which occurred before 1st
April 1995;
• A scheme covering the outstanding liabilities for clinical negligence in
respect of the former Regional Health Authorities.
Most claims received by the Trust will be dealt with under the CNST scheme.
Under the CNST Reporting Guidelines, the following circumstances trigger when a
claim should be reported to the NHSLA:
• Serious incident where investigations suggest there have been failings in
the care provided and there is the possibility of a large value claim i.e
damages of over £500,000;
• Disclosure request (or some indication that a claim is being considered)
and internal investigation reveals possibility of a claim with a significant
litigation risk regardless of value;
• Letter of Claims served and / or Part 36 offer received and / or proceedings
served;
• Group action i.e any adverse issue which has the potential to involve a
number of patients;
• Serial offender claims i.e claims arising from alleged negligence and / or
serious professional misconduct of a staff member affecting a number of
patients
Once reported to the NHSLA the Trust will co-operate with the NHSLA at all times
and will respond to requests for further information in relation to the claim.
Most legal expenses arising from Clinical Negligence Claims will be met directly by
the NHSLA. The NHSLA will decide whether to obtain expert medical evidence and
can decide to appoint panel solicitors to deal with the claim on their and the Trust’s
behalf.
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6.1.7 Letter of Notification
Following receipt and analysis of the records and, if appropriate, receipt of an
initial supportive expert opinion, the Claimant may wish to send a letter of
notification to the Trust as soon as practicable. This is however not a mandatory
requirement.
The letter of notification should advise the Trust that this is a claim where a letter
of claim is likely to be sent because a case as to breach of duty and/or causation
has been identified. A copy of the Letter of Notification should also be sent by the
Claimant or their solicitors to the NHSLA.
On receipt of a letter of notification the Trust should—
(a) Acknowledge the letter within 14 days of receipt;
(b) Identify who will be dealing with the matter and to whom any letter of
claim should be sent;
(c) Consider whether to commence investigations;
(d) Consider whether any information could be passed to the Claimant which
might narrow the issues in dispute or lead to an early resolution of the
claim; and
(e) Forward a copy of the letter of notification to the NHSLA or other relevant
medical defence organisation/indemnity provider.
The court may question any subsequent requests by the Trust for extension of time
limits if a letter of notification was sent but did not prompt an initial investigation.
In some occasions this will be the first Legal Services become aware of the
potential claim against the Trust and it will trigger the investigation stage, outlined
above at paragraph [6.1.5].
If an investigation has already been completed, the clinicians will be sent a copy of
the letter of notification for provision of further comments as this letter may
contain further details as to the alleged negligence and/or the allegations may have
changed. It is acknowledged that the clinicians may not have anything further to
add.
The letter of notification together with any further comments obtained from
clinician(s) will also be sent to the Medical Director and the relevant Service Line
Manager for information purposes.
6.1.8 Letter of Claim
If the Claimant decides that there are grounds for a Clinical Negligence Claim to be
pursued against the Trust, they or their solicitors will send a letter of claim.
The letter of claim should contain—
(a) A clear summary of the facts on which the claim is based, including the
alleged adverse outcome, and the main allegations of negligence;
(b) A description of the Claimant’s injuries, and present condition and
prognosis;
(c) An outline of the financial loss incurred by the Claimant, with an indication
of the heads of damage to be claimed and the scale of the loss, unless this
is impracticable;
(d) Confirmation of the method of funding and whether any funding
arrangement was entered into before or after April 2013; and
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(e) The discipline of any expert from whom evidence has already been
obtained.
The letter of claim should refer to any relevant documents, including health
records, and if possible enclose copies of any of those which will not already be in
the Trust’s possession, e.g. any relevant general practitioner records if the
Claimant’s claim is against a hospital.
Sufficient information must be given to enable the Trust to focus investigations and
to put an initial valuation on the claim.
The Trust must acknowledge receipt of the letter of claim immediately and send a
copy to the NHSLA. It is mandatory for the Trust to report the claim to the NHSLA
upon receipt of a letter of claim.
Formal court proceedings should not be issued by the Claimant against the Trust
until after four months of the letter of claim. However, there may be circumstances
in which proceedings have to be issued earlier, for example if limitation is to expire
(i.e. the date by which the Claimant must issue a claim).
The Claimant may make an offer to settle the claim at this early stage by putting
forward an offer in respect of liability and/or an amount of compensation. If an
offer to settle is made, generally this should be supported by a medical report
which deals with the injuries, condition and prognosis, and by a schedule of loss
and supporting documentation. The level of detail necessary will depend on the
value of the claim. Medical reports may not be necessary where there is no
significant continuing injury and a detailed schedule may not be necessary in a low
value case.
In some circumstances this will be the first Legal Services become aware of the
potential claim against the Trust and it will trigger the investigation stage, outlined
above at paragraph [6.1.5]. If an investigation has already been completed, the
clinicians will also be sent a copy of the letter of claim, together with the Claimant’s
expert’s report for any further comments as this letter may contain further details
as to the alleged negligence and/or the allegations may have changed. If comments
are not provided within a reasonable period, Legal Services will notify the Medical
Director.
The letter of claim together with comments obtained from clinician(s) will also be
sent to the Medical Director and the relevant Service Line Manager for information
purposes.
6.1.9 Letter of Response
The Trust should acknowledge the letter of claim within 14 days of receipt and
should identify who will be dealing with the matter.
Further investigations are carried out in conjunction with the NHSLA and often
panel solicitors are appointed by the NHSLA to obtain expert evidence as to
whether the Trust has breached its duty and/or causation.
The Trust should, within four months of the letter of claim, provide a reasoned
answer in the form of a letter of response in which the Trust should—
(a) If the claim is admitted, say so in clear terms;
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(b) If only part of the claim is admitted, make clear which issues of breach of
duty and/or causation are admitted and which are denied and why;
(c) State whether it is intended that any admissions will be binding;
(d) If the claim is denied, include specific comments on the allegations of
negligence and, if a synopsis or chronology of relevant events has been
provided and is disputed, the defendant’s version of those events;
(e) If supportive expert evidence has been obtained, identify which disciplines
of expert evidence have been relied upon and whether they relate to
breach of duty and/or causation;
(f) If known, state whether the defendant requires copies of any relevant
medical records obtained by the claimant (to be supplied for a reasonable
copying charge);
(g) Provide copies of any additional documents relied upon, e.g. an internal
protocol;
(h) If not indemnified by the NHS, supply details of the relevant indemnity
insurer; and
(i) Inform the claimant of any other potential defendants to the claim.
The letter of response is drafted either by the NHSLA or panel solicitors appointed
by the NHSLA.
If the Trust requires an extension of time for service of the letter of response, a
request should be made as soon as it becomes aware that it will be required and, in
any event, within four months of the letter of claim. The Trust should explain why
any extension of time is necessary. The Claimant should adopt a reasonable
approach to any request for an extension of time for provision of the reasoned
answer.
If the claimant has made an offer to settle, the Trust should respond to that offer in
the letter of response, preferably with reasons. The Trust may also make an offer
to settle at this stage. If an offer to settle is made, the Trust should provide
sufficient medical or other evidence to allow the Claimant to properly consider the
offer. The level of detail necessary will depend on the value of the claim.
If any admissions are to be made in the letter of response approval from the
Medical Director will be sought. If the Medical Director is unavailable, Legal
Services will seek approval from the relevant Associate Director. Any admissions in
the letter of response are binding upon the Trust.
6.1.10 Proceedings
If the Claimant wishes to pursue the matter then the next step is to issue formal
court proceedings. The Claimant starts formal court proceedings against the Trust
by issuing a claim form at court. The claim form contains a concise statement of the
nature of the claim (i.e. clinical negligence) and the remedy sought (i.e.
damages/monetary compensation).
Once the claim is issued by the court (i.e. stamped/sealed), the Claimant must
serve (i.e. send) the form on the Trust within four months.
The timetable for the Trust to respond to the claim will however not start to run
until the Claimant has served particulars of claim. The particulars of claim set out
full details of the claim, including the alleged facts on which the claim is based. The
particulars of claim may be served on the Trust at the same time as the claim form
but can be served up to 14 days later, or even later on agreement of the parties.
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A copy of the claim form, the particulars of claim and any expert evidence in
support of the Claimant’s claim will be sent to the clinicians involved in the
patient’s care at the time of the allegations for any further comments as the
particulars of claim may contain further details as to the alleged negligence and/or
the allegations may have changed. If comments are not provided in a reasonable
period the matter will be referred to the Medical Director.
The letter of claim together with comments obtained from clinician(s) will also be
sent to the Medical Director and the relevant Service Line Manager for information
purposes.
6.1.11 Limitation
The Claimant has a certain time limit in which to issue the claim against the Trust.
This differs depending upon certain circumstances:
6.1.11.1 An adult with capacity.
Limitation expires 3 years from the date of the alleged negligence or 3
years from the date upon which they become aware that they had
suffered a significant injury as a result of the Trust’s acts or omissions. The
date of knowledge could be some considerable time after the alleged
incident i.e if it takes time to diagnose the issue.
6.1.11.2 An adult or child without capacity
If an adult is not able to manage their own affairs then there is no time
limit for them to bring a claim.
6.1.11.3 A child
The time limit for an individual harmed as a child to bring a claim for
medical negligence does not expire until the child’s 21st birthday. This
gives the child the option of considering pursuing a claim in their own
right, once they become an adult.
6.1.11.4 A deceased patient
The time limit for a claim to be brought on behalf of the deceased’s estate
is 3 years from the date of death if the patient has capacity; 6 years from
the date of death if the deceased lacked capacity at time of death.
If the deadline to issue proceedings is approaching it is common practice
that the claim will be issued protectively i.e. to prevent the Claimant
losing their right to bring a claim and then served on the Trust later once
investigations are carried out by the Claimant as to the grounds of their
claim.
6.1.12 Acknowledgement of Service
The Trust or its legal representatives must file an acknowledgement of service
within 14 days after service of the particulars of claim. In this form the Trust must
indicate whether it intends to defend all or part of the claim. It is therefore
important that the investigative steps set out above have been completed.
6.1.13 Defence
The defence is the Trust’s formal response to the allegations contained within the
particulars of claim. The defence must state which allegations of the particulars of
Claims Management Policy v6 16
claim the Trust admits, denies (giving reasons for the denial and explaining its
version of events) and neither admit or deny, but requires the claimant to prove.
It is not necessary to file a defence if the Trust is to admit the whole claim i.e. both
that it breached its duty of care to the claimant and that this breach caused the
injury suffered.
The deadline for filing the defence is short. It must be filed within 28 days after
service of the particulars of claim, if an acknowledgement of service has been filed.
Otherwise, the defence must be filed within 14 days after service of the particulars
of claim.
Comments from clinicians therefore need to be provided as soon as possible and in
any event no later than 2 weeks from request.
If the Trust requires more time to prepare its defence, it is possible to ask the
claimant to agree an extension of time up to an additional 28 days for filing the
defence. If more time is needed beyond the agreed extension, the Trust has to
apply to the court.
If the defence is not filed by the relevant deadline, the claimant can seek judgment
to be entered in their favour. It is therefore vital that deadlines are complied with.
If any admissions are to be made in the defence, the defence will be approved and
signed by the Medical Director. If the Medical Director is unavailable, Legal Services
will seek approval from the relevant Associate Director.
6.1.14 Case Management Conference
A case management conference (CMC) is a procedural hearing where the court give
directions for the future conduct of the case until trial. There may not be a CMC if
the parties have agreed a timetable for the steps to be completed. This timetable is
known as directions.
Each party is also now required to file a costs budget, setting out the expected
costs for each stage of the litigation up to and including a trial. These budgets will
form the basis of the level of recovery of costs by the successful party.
6.1.15 Disclosure of documents
The purpose of disclosure is for each party to make available documents which
either support or undermine any party’s case. This may include documents that are
sensitive.
It is essential that all documents that are potentially disclosable, including
electronic documents such as emails, voicemails etc are preserved.
Legal Services must be provided with all documentation that may be relevant to
the claim. Legal Services and / or the Trust’s solicitors and / or the NHSLA will
consider if such documentation should be disclosed. The Legal Services Manager
will be required to sign documentation to confirm all relevant documentation has
been disclosed. In signing this document, the Legal Services Manager relies upon
documentation being disclosed to him / her by other staff members of staff within
the Trust.
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6.1.16 Witness Statements
It will be necessary to prepare written statement of the evidence that each
individual intends to give to support the defence. These statements will be sent to
the Claimant/Claimant’s solicitors. The Trust will also receive the Claimant’s
witness statements.
A witness statement must be in own words of the person making the statement
and will include a statement of truth. It is important that the content of the
statement is accurate as in signing the statement of truth the individual is
confirming the content is accurate.
The statements normally stand as evidence in chief. A witness may be cross-
examined on their statement a trial.
6.1.17 Trial and Judgment
The length of the Trial will depend on the complexity of the claim and the number
of witnesses giving evidence.
Trust staff members called as witnesses will be offered support, training and
guidance from the Legal Services Manager and the Trust’s solicitors. The manager
of staff members will also provide ongoing support throughout the process.
The trial will be held in public, unless the court has ordered it may be held in
private because it involves matters of a confidential nature and publicity would
cause harm or damage.
The trial will be heard by a single judge. The burden of proof is on the Claimant i.e
to be successful the claimant must prove on the balance of probabilities that the
Trust was negligent. The Claimant needs to prove that:
1. The Trust owed a duty to take care of the claimant;
2. There was a Breach of Duty i.e that the treatment provided fell below that
of a standard of a reasonably competent clinician in that particular field.
This is known as the “Bolam” test. It is not sufficient to simply rely upon a
reasonable body of medical opinion to show the Trust was not negligent. It
is also necessary to show that the Medical opinion itself is logical and
reasonable;
3. The Breach of Duty has caused harm to the claimant; and
4. Damage or other losses have resulted from harm.
The judgement may be given immediately after the trial but it is often “reserved”
to a later date.
The above process for Clinical Negligence Claims is summarised in the flow chart
annexed at Appendix 1.
6.1.18 Link with Incidents, Risks and Complaints
Legal Services will maintain a database of all Clinical Negligence Claims, which will
include details of whether the Clinical Negligence Claims have previously been
subject to an incident report or a Complaint / PALS issue. Any links will be assessed
and reported in the CLIPA report and discussed at CLIPA meetings with Risk
Management and representatives from Complaints and PALS.
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6.2 Employee and Public Liability Claims and Miscellaneous Risk Pooling Claims
6.2.1 Definition
The Trust owes duties of care under various laws, such as Health and Safety Law, to
ensure the Health Safety and Welfare of staff and visitors. Where the Trust fails to
comply with such laws and the claimant suffers an injury and financial loss as a
result, a claim can be made against the Trust.
Trusts are seeing an increase in individuals seeking damages for injuries sustained
either during the course of employment with the Trust (employee liability claims)
or when visiting Trust premises (public liability claims). The range of injuries subject
to such claims is extremely wide and can include trips, falls, back injuries as well as
stress related injuries and industrial disease claims (i.e noise induced hearing loss).
The Trust may also receive other claims involving Products Liability, Professional
indemnity, Loss and Damage to Trust Policy and other miscellaneous claims
including cover for fidelity, fraud and travel.
6.2.2 The role of the NHSLA in relation to Employee and Public Liability Claims
The NHSLA Liability to Third Party Scheme (LTPS) has been in place since April 1999
and covers:
• Employee liability claims
• Public Liability Claims
• Products Liability
• Professional indemnity
• Loss and Damage to Trust Property
• Miscellaneous claims including cover for fidelity, fraud and travel
All claims which are above the Trust’s excesses (see below) must be reported to the
NHSLA. Such claims which fall below the excesses may be managed in house by the
Trust.
For all non-clinical claims the ultimate decision as to whether admission will be
made rests with the NHSLA.
The Trust is responsible to pay the following excesses in relation to Employee and
Public Liability Claims:
• Employee liability claims excess: £10,000
• Public Liability Claims excess: £3,000
• Products Liability claims excess: £3,000
• Professional indemnity claims excess: £3,000
• Property Expenses:
o Buildings: £20,000
o Contents: £20,000
Any costs incurred over and above the excess amount are met directly by the
NHSLA. It is often the case that the Trust will pay any amounts due and
subsequently receive a refund for the amount paid over the applicable excess.
The NHSLA may appoint panel solicitors to deal with any claims on its / the Trust’s
behalf.
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6.2.3 Receipt of Notification for claims under LTPS
The way in which legal services become aware of a potential Claim under the LTPS
will depend upon type and the value of the claim. The Director of Nursing,
Midwifery and Quality will be made aware of any claim received, together with the
Service Line Manager for the Service in which the incident occurred.
6.2.3.1 Low Value EL/PL Personal Injury Claims
All claims in relation to Employee Liability and Public Liability incidents
occurring on or after 31 July 2013 and valued at above £1,000 but under
£25,000 (excluding claims involving vulnerable adults or children) (Low
Value EL/PL Personal Injury Claims) are to be reported through the Claims
Portal (www.claimsportal.or.uk). The Portal is a secure electronic
communication tool enabling documentation to be sent between parties.
The claim must be reported to the NHSLA by the Trust in the following
circumstances:
1. The Trust receives a Claim Notification Form and the covering
letter confirms that the NHSLA have not been made aware of the
claim via the Portal; or
2. The Trust receives a Claim Notification Form and the Trust has
received any contact from the NHSLA within 3 working days.
Such claims are generally the Pre-Action Protocol for Low Value Personal
Injury (Employers Liability and Public Liability) Claims (Low Value EL/PL
Personal Injury Protocol).
Under the Low Value Personal Injury EL/PL Protocol strict and tight
timeframes are imposed to provide a decision as to liability.
In relation to employee liability claims the Trust / the NHSLA must provide
a decision as to liability to the Claimant within 30 working days and for
public liability claims the time limit is 40 working days. This puts significant
pressure on the Legal Services department to liaise with the Trust’s
various departments and QE Facilities to obtain sufficient information to
assist the Trust / NHSLA to conclude whether liability should or should not
be admitted at a very early stage.
The advantages of dealing with claims under the Low Value EL/PL Personal
Injury Protocol is to save costs in that fixed costs are recoverable.
Given the tight timescales imposed for Low Value EL/PL Personal Injury
Claims it is important that all staff fully co-operate with Legal Services to
ensure that an investigation into the allegations can be carried out and a
decision as to whether the claim has any merit considered.
It will also allow Legal Services to notify relevant departments, such as,
Risk Management, Health & Safety and Ergonomics of any issues to
enable a plan to be implemented to prevent a repeat incident from
occurring.
Legal Services will begin its investigation by searching the Trust’s Datix
system to ascertain if an incident report form was reported in relation to
the incident. The information from any Datix form will then be used to
contact any witnesses to the incident. More junior members of staff will
be asked for comments through more senior members, i.e the Service
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Line Managers or the investigator into the incident, to ensure that
sufficient support is provided.
The following list gives examples of other examples of information that
will be obtained (this is not exhaustive):
• Accident book / report form
• First Aider report
• Foreman / Supervisors accident report
• Safety representatives report
• RIDDOR report
• Any communications between the Trust and Health & Safety
Executive
• Minutes of Health & Safety Committee meetings where the
accident was discussed
• Reports to DSS
• Documentation in relation to any relevant previous accident or
matter identified by the claimant
• Earnings information (13 weeks prior and 13 weeks post-accident)
• Pre-accident risk assessment
• Post-accident risk assessment
• Training records
• CCTV
• Cleaning records
• Maintenance records
Obtaining such information requires close working and co-operation
between Legal Services and a number of departments within and outside
of the Trust, such as
• Health & Safety
• Payroll
• Ergonomics
• OD and Training
• QE Facilities
All departments and organisations contacted will endeavour to provide
the information requested by Legal Services immediately to ensure that
the tight timescales are complied with.
Once having collated the above documentation and information the Legal
Services Manager will review the documentation, in conjunction with the
NHSLA and assess whether any admissions are to be made.
Approval to make admissions and any settlement offers will be obtained
by Legal Services from the Director of Nursing, Midwifery and Quality,
who will consult appropriately with any other relevant Directors and / or
Associate Directors.
If admissions are to be made there is a requirement on the Trust to
provide any documentation as part of pre-action disclosure to the
Claimant.
The Claimant will then provide medical evidence to support the value of
the claim and the NHSLA will begin settlement negotiations.
Claims Management Policy v6 21
If having reviewed the collated documentation and information, the Legal
Services Manager and the NHSLA conclude that liability should be denied,
the claim will fall out of the portal. The procedure for an EL/PL claim being
pursued outside of the portal criteria will then be applicable.
The above procedure is set out in Appendix 2.
6.2.3.2 EL/PL Claims Not Covered Under The Low Value EL/PL Personal Injury
Protocol
The Trust is likely to become aware of such claims upon receipt of a letter
of claim.
The Pre-action Protocol for Personal injury Claims (Personal Injury
Protocol) will be applicable and should be complied with.
A letter of notification may be served for example in circumstances where
the claimant is incurring significant expenditure as a result of the accident
which they hope the defendant might pay for, in whole or part. The Trust
must acknowledge receipt of a letter of notification within 14 days.
The letter of claim should contain a clear summary of the facts on which
the claim is based, together with an indication of the nature of the injuries
suffered, and the way in which these impact on the claimant’s day to day
functioning and prognosis. Any financial loss incurred by the claimant
should be outlined.
Upon receipt of a letter of claim the same investigative steps as set out for
EL/PL Portal claims as outlined in paragraph [6.2.3.1] above will be
undertaken.
Under the Personal Injury Protocol the Trust must acknowledge receipt of
the Letter of Claim within 21 days. The Claimant should not issue
proceedings until 3 months from the date of the letter of claim unless
limitation is due to expire (see below).
The Trust should, within 3 months of the letter of claim, provide a
reasoned answer in the form of a letter of response. This is often drafted
by the NHSLA or appointed panel solicitors.
If the Trust denies liability and / or Causation, its version of events should
be supplied. The Trust should also enclose with the letter of response,
documents in its possession which are material to the issues between the
parties, and which would be likely to be ordered to be disclosed by the
court. The Trust is unable to charge for the provision of such
documentation.
If any admissions are to be made by the Trust in the Letter of Response
approval from the Director of Nursing, Midwifery and Quality will be
sought. Any admissions in the letter of response are binding on the Trust.
If the Claimant wishes to pursue the claim, whether following a denial in
relation to a Low Value EL/PL Personal Injury Claim or other EL/PL Claim,
the next step is for them to issue formal court proceedings.
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The process regarding court proceedings is similar to that set out in
paragraphs [6.1.10] to [6.1.17] in relation to Clinical Negligence Claims.
A copy of the claim form, the Particulars of Claim and any medical
evidence in support of the Claimant’s claim will be sent to those involved
in the initial investigative stage for further comments as the particulars of
claim may contain further details of the allegations and / or the
allegations may have changed.
The above procedure is set out in Appendix 3.
6.2.3.3 Other Claims Covered Under LPTS
Although there is no specific protocols to be followed with on a case by
case basis with legal Services investigating into any allegations made and
liaising with the NHSLA, where appropriate.
6.3 Inquests
6.3.1 What is a Coroner?
A coroner is an independent judicial office holder, appointed by a local authority
(council) within the coroner area. Coroners are usually lawyers but sometimes
doctors. The Chief Coroner heads the coroner service and gives guidance on
standards and practice.
6.3.2 What do Coroners Do?
Coroners investigate deaths that have been reported to them if they have reason
to think that:
• The death was violent or unnatural;
• The cause of death is unknown; or
• The deceased died while in prison, police custody or another type of state
detention such as an immigration centre or while detained under the
Mental Health Act 1983 or whilst subject to a Deprivation of Liberty.
When a death is reported to a coroner, he or she:
• Firstly establishes whether an investigation is required;
• If yes, investigates to establish the identity of the person who has died;
how, when, and where they died; and any information required to register
the death; and
• Uses information discovered during the investigation to assist in the
prevention of other deaths where possible.
6.3.3 What is a Coroner’s Investigation?
The coroner’s investigation is the process by which the coroner establishes who has
died, and how, when, and where they died. The coroner may decide, as part of the
investigation, to hold an inquest (see below).
As part of his/her investigations it is common that the coroner will request
statements from clinicians involved in the care of the deceased prior to their death.
Clinicians will be contacted by Legal Services to provide such a statement and all
statements will be sent to the coroner through the Legal Services Department. All
statements should be addressed to the coroner. If clinicians are approached by the
coroner’s office directly to provide a statement, Legal Services should be informed.
Claims Management Policy v6 23
Any statement should be factual, based on the deceased records, detailing the
author’s involvement in the care of the deceased, including their role and
qualifications. It should also address any concerns that have been raised by the
family. Whilst the statements will contain medical references, medical jargon
should be avoided where possible or clearly explained for the family.
After having provided a statement the coroner may raise further queries to assist
him with his investigations and require further statements to be made.
In addition to statements from those involved in the deceased care, the coroner
may ask to be provided with other documentation such as the deceased medical
records, the Trust’s complaint file, any root cause analysis, minutes of meetings at
which the deceased’s care or death was discussed i.e. minutes of serious incident
panel meeting.
The coroner may impose strict deadlines for statements and or information to be
provided, which Legal Services and clinicians will endeavour to comply with.
In some cases other organisations, such as the police, the Health and Safety
Executive or the Care Quality Commission, are required to conduct a separate
investigation into the death. This investigation usually takes place first and the
Coroner will be given the results so s/he can use the information at the inquest.
6.3.4 When a Death should be Reported to the Coroner
A mixture of legislation, common law and make it important for doctors to refer
cases to the Coroner. A death should be referred to the coroner by Trust staff in
the following circumstances (this list is not exhaustive):
• The cause of death is unknown;
• It cannot readily be certified as being due to natural causes;
• The deceased was not attended by the doctor during his last illness or was
not seen within the last 14 days or viewed after death;
• There are any suspicious circumstances or history of violence;
• The death may be linked to an accident (whenever it occurred);
• There is any question of self-neglect or neglect by others;
• The death has occurred or the illness arisen during or shortly after state
detention i.e police custody; patients subject to Deprivation of Liberty;
• The deceased was detained under the Mental Health Act;
• The death is linked with an abortion;
• The death might have been contributed to by the actions of the deceased
(such as a history of drug or solvent abuse, self-injury or overdose);
• The death could be due to industrial disease or related in any way to the
deceased's employment;
• The death occurred during an operation or before full recovery from the
effects of an anaesthetic or was in any way related to the anaesthetic (in
any event a death within 24 hours should normally be referred);
• The death may be related to a medical procedure or treatment whether
invasive or not;
• The death may be due to lack of medical care;
• There are any other unusual or disturbing features to the case;
• The death occurs within 24 hours of admission to hospital (unless the
admission was purely for terminal care);
• It may be wise to report any death where there is an allegation of medical
mis- management.
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Legal Services should be notified of any deaths reported to the Coroner.
6.3.5. What will a Coroner do when a Death is Reported?
A coroner may conduct initial enquiries in order to decide whether to investigate
the death.
In some cases those enquiries, such as a discussion with clinicians treating the
deceased, make it clear that the deceased died from a known and natural disease
or condition and there are no unusual circumstances. The coroner does not need to
investigate further and the doctor will be asked to sign a Medical Certificate of the
Cause of Death (MCCD). In these cases the coroner will advise the registrar of
births and deaths that, although he or she was made aware of the death, no
further investigation is needed.
However the coroner may decide that he or she needs to ask a suitable
practitioner, normally a pathologist, to examine the body and carry out a post-
mortem examination to help find out the cause of death.
6.3.6 Post-mortem Examination
The coroner decides whether or not a post-mortem examination is needed and
what type of examination is most appropriate.
After the post-mortem examination the pathologist will send a report to the
coroner. The report will give details of the examination, of any tissues and organs
retained, and any tests, such as for drugs and blood alcohol level, which have been
carried out to help in finding out the cause of death.
Sometimes the pathologist’s report may not be available for several weeks because
of the complexity of the examination.
A coroner may decide the investigation is either unnecessary or complete if the
post-mortem examination has shown the cause of death. The coroner will then
release the body so that the funeral can take place.
Sometimes a coroner may decide that further investigation is needed into the
death.
6.3.7 The Inquest
If it was not possible to find out the cause of death from the post-mortem
examination, or the death is found to be unnatural or occurred in state detention
i.e. Deprivation of Liberty, or the coroner thinks there is a good reason to continue
the investigation, a coroner has to hold an inquest to be able to finish his or her
investigation.
An inquest is a public court hearing held by the coroner in order to establish who
died and how, when and where the death occurred. The inquest may be held with
or without a jury, depending on the circumstances of the death. Members of the
public and media are normally allowed to attend the inquest.
An inquest is different from other types of court hearing because there is no
prosecution or defence. The purpose of the inquest is to discover the facts of the
death. Although an inquest is not concerned with apportioning blame for the
death, this does not mean the inquest should not inquire into whether the death
was contributed to by some human or system failure.
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The main inquest hearing should normally take place within six months or as soon
as practicable after the death has been reported to the coroner.
The Legal Services Manager or a representative from Legal Services will attend all
inquests to support staff members involved. If the family is represented by
solicitors, it is likely to be a civil claim pursued following the inquest or if the matter
is complex, the Legal Services Manager may decide to instruct solicitors to
represent the Trust.
Sometimes the coroner may hold one or more hearings before the inquest, known
as pre-inquest reviews or directions hearings. These may be arranged if, for
instance, the circumstances of the death are complex and there needs to be a legal
discussion about the scope of the inquest. It is unlikely that witnesses will be
required to attend such a hearing.
The coroner decides who should be called to give evidence as a witness and the
order in which they give evidence. If the witness lives in England or Wales they
must attend if they are asked to. In many cases the evidence of a witness may be
vital in establishing the facts of the death. A witness may either be asked to attend
the inquest voluntarily or receive a formal summons to do so. It is an offence not to
attend and the coroner can impose a fine or prison sentence.
Evidence by witnesses is given under oath or by affirming that they will tell the
truth.
The coroner will question a witness first. After that the family or their
representative may ask the witness relevant questions. It is the coroner who
decides whether a question is relevant to the inquest. Representatives of the Trust
will then be able to ask questions. Witnesses should simply truthfully answer the
question asked of them.
All Trust staff called as witnesses to inquests will be offered support, training and
guidance from the Legal Services Manager and the Trust’s solicitors, if instructed.
Managers of staff members will also provide ongoing support throughout the
process.
The coroner (or jury where there is one) comes to a conclusion at the end of an
inquest. This includes the legal ‘determination’, stating formally who died, and
where, when and how they died. The coroner or jury may also make ‘findings’ to
allow the death to be registered. When recording the cause of death the coroner or
jury may use one of the following terms:
• Accident or misadventure
• Alcohol/drug related
• Industrial disease
• Lawful/unlawful killing
• Natural causes
• Open (used when there is insufficient evidence for any other outcome)
• Road traffic collision
• Stillbirth
• Suicide
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Alternatively, or in addition, the coroner or jury may make a brief ‘narrative’
conclusion setting out the facts surrounding the death in more detail and
explaining the reasons for the decision.
It is possible for the family and the Trust to challenge a coroner’s decision. Such a
challenge must be made within 3 months of the conclusion.
6.3.8 Prevention of Future Deaths
Sometimes an inquest will show that something could be done to prevent other
deaths. If so, the coroner must write a report drawing this to the attention of an
organisation (or person) that may have the power to take action. This is called a
‘report to prevent future deaths’, commonly referred to as a Regulation 28 report.
The organisation must send the coroner a written response to the report. If it does
not respond within 56 days, stating what action it has taken, the coroner will follow
up the matter with the organisation, and may inform the Chief Coroner of the
failure to respond.
The coroner must send the report and response to the Chief Coroner. The Chief
Coroner issues a summary of these reports, which is published on the Judiciary
website.
6.3.9 Death of a Child
The deaths of children under the age of 18 are reviewed by a Child Death Overview
Panel on behalf of the Local Safeguarding Children Board (LSCB). The Child Death
Overview Panel reviews information in order to prevent future deaths and is
accountable to the LSCB. The LSCB has responsibility for safeguarding and
promoting the welfare of children in its area.
If the death of someone under the age of 18 is reported to the coroner, the
coroner must ensure that the appropriate LSCB knows of the death within three
working days of opening the investigation. The coroner and LSCB share information
for the purposes of investigating the death of the child and undertaking Serious
Case Reviews.
6.3.10 Inquests and Civil Claims
Any civil proceedings (such as clinical negligence claims) will normally follow the
inquest.
When all the facts about the cause of death are known it is possible that civil
proceedings may be brought and a claim for damages made. It may be that the
Trust is made aware of the claim prior to the conclusion of the inquest.
If there is likely to be a claim arising out of the circumstances of the inquest, the
Trust can apply to the NHSLA for a contribution towards funding in relation to the
inquest.
6.4 Miscellaneous Legal Matters
Day to day legal enquiries will be dealt with by the Legal Services Manager on a case by
case basis. The Legal Services Manager will liaise with the Trust’s solicitors, if necessary.
The circumstances where the query should be re-directed to another department the Legal
Services Manager will advise.
Claims Management Policy v6 27
6.5 Dissemination of Learning
It is important that the Trust learns from the experience and actions to prevent similar
incidents reoccurring. Learning and risk issues from Clinical Negligence Claims, claims
covered under the LTPS and Inquests will be identified and shared by legal Services directly
with staff members involved in the incident, the Director of Nursing, Midwifery and
Quality, Medical Director, Risk Management Team, SafeCare and the PQRS Committee.
7. Training
Training in the investigation of claims will be provided to senior management as part of Strategic
Risk Management awareness programmes as reflected in the Trust Training Needs Analysis.
8. Equality and Diversity
The Trust is committed to ensuring that, as far as is reasonably practicable, the way we provide
services to the public and the way we treat our staff reflects their individual needs and does not
discriminate against individuals or groups on the grounds of any protected characteristic (Equality
Act 2010). An equality analysis has been undertaken for this policy, in accordance with the Equality
Act (2010).
9. Monitoring Compliance within the Policy
Standard / process / issue Monitoring and audit
Method By Committee Frequency
CLIPA
Reports Legal
Services
Manager
SafeCare
Council and
PQRS
Quarterly
Position on ongoing, new and
settled claims
Report Legal
Services
Manager
Trust Board Annually
10% of claims audited to
demonstrate compliance with
the policy including:
• Actions to be taken
including timescales
• Communications with
relevant stakeholders
where appropriate
Audit Legal
Services
Manager
PQRS Annually
Solicitors risk management
reports
Completed action
plans
Divisions Safecare As required
The department will co-operate with the audit departments both internal and external to enable
them to conduct audit of the claims management processes.
10. Consultation and Review
The policy will be reviewed on a two yearly basis or in the light of changes in guidance or
legislation.
Claims Management Policy v6 28
11. Implementation of Policy (including raising awareness)
All claims and potential claims against the Trust will be managed in accordance with this policy.
12. References
Pre Action Protocol for the Resolution of Clinical Disputes
Pre Action Protocol for Low Value Personal Injury (Employers liability and Public liability) Claims
Pre Action Protocol for Personal Injury Claims
Civil Procedure Rules
Data Protection Act 1998
Access to Health Records Act 1990
Civil Procedure Rules
Clinical Negligence Scheme for Trusts – Membership Rules April 2001 (as amended)
Liabilities to Third parties Scheme – Membership Rules October 2014
Property Expenses Scheme – Memberships rules October 2014
NHSLA Reporting Guideline – April 2014
13. Associated Documentation
This policy should be read in association with the following policies, procedures and guidance.
RM04 Incident Reporting Policy & Procedure including Serious Untoward Incidents Guidelines for
Investigations
RM21 Complaints Policy
RM49 Duty of Candour and Being Open Policy
RM51 Learning from Experience Policy
IG012 Subject Access Policy
IG06 Confidentiality and Data Protection Policy.
Claims Management Policy v6 29
Appendix 1 Clinical Negligence Flow Chart
Incident occurs
Report to NHSLA if:
• Serious Incident
• Failing in care provided
identified
• Claim value is more
than £50,000
• Group action
• Serial offender
Disclosure request received
40 days in which to provide
records
Internal investigations carried
out / PA obtained
Report to NHSLA if
internal investigations
reveal a significant risk
regardless of value of
claim.
Letter of Claim received
NHSLA
advise
to await
Letter of
Claim
Expert
reports
obtained and
negotiations
to settle
commenced
Must report to NHSLA
Acknowledge Letter of Claim
within 14 days
Investigations carried out /
Expert reports obtained
Claims Management Policy v6 30
Letter of Response served within
4 months of Letter of Claim
If allegations
denied await
proceedings
If admissions are made in
Letter of Response,
negotiations to settle will
commence
Proceedings issued and served
Must report to the NHSLA
Defence due 28 days after service
of Particulars of Claim (if
acknowledgement filed)
Admissions made experts
reports obtained /
settlement negotiations
entered into
Denied: Court process
engaged re. CMC,
Disclosure,
Statements, Trial
Claims Management Policy v6 31
Appendix 2 Low Value EL/PL Personal Injury Claims Flow Chart
Incident occurs
Investigation potentially occurs if
incident reported on Datix
Report to
NHSLA if
considered to
be a potential
group action
Notification form received
through Portal
Report to NHSLA if:
• NHSLA have not been
made aware of claim
• No NHSLA contact
received within 3 working
days
Internal investigation
Response regarding liability to
be provided within 30 days for
an EL claim and 40 days for a PL
claim
If admissions made:
• No requirement
for disclosure
• Claimant
provides medical
evidence
regarding value
of claim
• Negotiations
commence
If allegations denied:
• Disclose relevant
documents to
claimant’s solicitors
• Matter falls outside
Portal and is dealt
with as an EL/PL
claim not fulfilling the
Low Value EL/PL
Personal Injury
criteria
Claims Management Policy v6 32
Appendix 3 EL/PL Personal Injury Claims Flow Chart
Incident occurs
Report to the
NHSLA if likely
to be a group
action
Internal investigation potentially
occurs if incident reported on
Datix
Letter of Claim received
Acknowledgement of Letter of
Claim must be made within 21
calendar days
Internal investigation carried out
into allegations.
Letter of Response due 3 months
after Letter of Claim
If admissions made:
• Claimant
provides medical
evidence
regarding value
of claim
• Settlement
negotiations
commence
If denied:
• Await proceedings
Proceedings issued and served
Must report to
NHSLA
Defence due 28 days after
service of Particulars of Claim (if
acknowledgement filed)
Admissions made:
• Claimant provides
medical evidence
regarding value of claim
• Settlement negotiation
commence
Denied: Court process
engaged; CMC; Disclosure;
statements; trial