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Withdrawn date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


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


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


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.


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;


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.


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.


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.


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.


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.


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


(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;


(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.


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


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.


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.


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.


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


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.


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.


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.


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.


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.


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


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.


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.


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.


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


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


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


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