Select Committee on Health Written Evidence

Memorandum by the NHS Litigation Authority (NHSLA) (PS 32)



  The NHS Litigation Authority (NHSLA) handles negligence claims made against NHS organisations in England and promotes improvement in patient safety by encouraging better risk management practices within those organisations. This submission begins with some information on number and value of clinical claims. It then describes the programme of risk management standards, assessments, education and other support provided to NHS healthcare organisations by the NHSLA. The links between claims and the NHSLA risk management activities are considered. Ways in which the NHSLA shares claims and assessment data and works collaboratively with other bodies to support improvements in patient care are also outlined. The submission concludes that the NHSLA has made a positive contribution towards improving patient safety by using its unique claims experience to inform its own risk management activities, delivering a comprehensive risk management programme for the NHS, sharing claims and assessment data, and working with other organisations to increase the impact of patient safety measures.

  2.  The NHSLA is a Special Health Authority, established in 1995, with two main responsibilities:

    —  To handle clinical and non-clinical negligence claims made against NHS organisations in England, and

    —  To encourage these organisations to improve their risk management practices with the aim of improving patient safety.

  3.  The Clinical Negligence Scheme for Trusts (CNST) is a voluntary risk pooling scheme but all NHS Trusts, Foundation Trusts and Primary Care Trusts (PCTs) in England are members. It covers all clinical claims where the alleged negligent incident took place on or after 1 April 1995. The cost of meeting these claims is funded through members' contributions on a "pay-as-you-go" basis. The CNST also covers, under certain specific circumstances, some independent sector providers of NHS care, through the PCTs which commission their services. The Health and Social Care Act 2008 should, from 1st April 2009, enable the NHSLA to respond to requests from the independent sector to provide CNST cover for all their NHS work.

  4.  The number of claims reported to the NHSLA under CNST where a formal letter of claim has been received, as well as the total payments made in the past five years, are shown in Figure A. The figure shows that the number of claims has remained static at around 4,500 per annum, despite the alleged compensation culture, recurrent reconfiguration of services, commercial encouragement of those injured in accidents to claim, and the growing complexity of treatment and increased levels of activity within the NHS. The 56% increase in claims payments is in large part a reflection of the growing maturity of CNST, fuelled by claims inflation of circa 10% per annum, and the burgeoning use of conditional fee arrangements to fund claims.

  Figure A. CNST claims numbers and payments 2003-04 to 2007-08

  5.  Figures B and C show the total value and number of claims, by specialty, reported to the NHSLA since the inception of CNST in 1995. Claims arising from obstetrics and gynaecology are responsible for 51% of the value and 21% of the number of claims. The high value is due to the cost of claims for babies born with cerebral palsy as a result of negligent care, that settle for an average of around £4 million each but which can be far more costly depending on the extent of life long care required.

  Figure B. Total value of reported CNST claims by specialty 01/04/1995—31/03/2008

  Figure C. Total number of reported CNST claims by specialty 01/04/1995—31/03/2008

  6.  The NHSLA risk management programme includes standards against which all organisations indemnified under CNST are required to be assessed. The standards are based on evidence of both:

    —  The factors which lead to negligence and give rise to a claim and

    —  The systems which organisations need to have in place to prevent patient safety incidents and which enable such incidents to be dealt with appropriately when they occur.

  The standards are also designed to facilitate learning and the sharing of lessons from such incidents.

  In addition, the NHSLA provides ongoing support and training to assist organisations in achieving the standards.

  7.  When the NHSLA introduced the CNST clinical risk management standards in 1995, they were the first such clinical standards for the NHS. Since this date, the standards have been maintained and updated on a regular basis to reflect the wide variety of risks affecting patient safety and ongoing changes within the healthcare environment. For example, criteria on infection control were added in 2002-03. In 2003-04, a whole new set of standards for maternity services was introduced in response to the high number and cost of claims arising from obstetric care.

  8.  In addition to clinical negligence claims, the NHSLA manages non- clinical claims made against NHS organisations, including employers' liability claims. Within its standards the NHSLA also addresses risks to NHS staff, because the management of these risks can have a significant impact on patient safety. For example, staff absence resulting from work related ill health can put both patient and staff safety at risk, through inadequate cover or the use of temporary staff who are unfamiliar with local safety systems. Also, staff involved in an incident or claim may be adversely affected by their experience and require appropriate support to enable them to continue to work safely. The NHSLA website contains a brief guide for clinicians to help them understand the claims process.

  9.  In recent years, the NHSLA standards have undergone fundamental review in close consultation with the NHS organisations to which they apply. Other stakeholders have also been widely consulted. The revised standards were extensively tested by pilot assessments, for example 60 pilot assessments were carried out at volunteer acute organisations during 2006-07. There is now a single set of standards specific to the risks faced by each type of NHS healthcare organisation ie acute hospitals, mental health & learning disability services, Ambulance Trusts and Primary Care Trusts, along with a set of standards for implementation by the independent sector covered under CNST when providing NHS care. Each set of standards incorporates organisational, clinical and health & safety risks. Separate clinical standards have been retained for organisations providing maternity services.

  10.  Each risk area within the current NHSLA standards is addressed at three distinct progressive levels (with Level 3 being the highest):

    —  Level 1—Policy

    —  Level 2—Implementation into practice, and

    —  Level 3—Improving effectiveness through monitoring and making changes

  As well as reflecting what is known about the causes of failures of care, the standards are also based on current guidance and recommendations issued by relevant professional and other bodies, such as the Royal Colleges. A decision was taken not to prescribe how organisations should aim to meet the standards but to allow them to manage their risks in accordance with best practice to suit local arrangements.

  11.  Following the principle of earned autonomy for better performing organisations, mandatory NHSLA assessments are conducted just three-yearly for Trusts attaining Levels 2 and 3. They are conducted on an annual basis for organisations at Level 0 and others that have failed an assessment, and two-yearly for those at Level 1. Organisations may, however, choose to be assessed at a higher level in the years between mandatory assessments. At a recent peak, the NHSLA was carrying out around 500 assessments per annum, but the number has since dropped, due to a reduction in the number of organisations requiring assessment and piloting of the revised standards.

  12.  All NHSLA assessments are conducted by a dedicated team of independent assessors who undergo an extensive induction and ongoing training programme. Most of the assessors are clinically qualified and all have practical experience of working in an NHS healthcare organisation. The assessors visit organisations being assessed to review documents, systems, and any other evidence an organisation chooses to submit. As part of the assessment process, assessors also hold discussions with staff to gain a better understanding of particular risk management systems. At the end of their visit the assessor provides verbal feedback to the organisation, highlighting areas of good practice and those requiring improvement, often making suggestions regarding implementation of the latter. After the assessment, the organisation receives a summary report of key findings.

  13.  A number of tools have been developed to help organisations in achieving the NHSLA risk management standards, including:

    —  An electronic evidence template to assist organisations in conducting a self assessment, in preparation for formal assessment;

    —  Handbooks containing current guidance, reference sources, and claims information in support of the standards; and

    —  Template documents to support the drafting of local policies to manage risks.

  14.  In the years between assessments, each organisation is offered an informal visit by their assessor to provide focused guidance and support in relation to the NHSLA standards and to monitor progress against their assessment action plan, fostering learning and improvement with regard to risk management practices. Level 0 organisations are offered additional support, for example extra visits and advice by email and telephone, to assist them in attaining Level 1.

  15.  The NHSLA provides a programme of regular learning events, aimed at assisting organisations to improve their risk management practices and thereby achieve compliance with the standards. Solicitors appointed by the NHSLA to manage claims also provide training for NHS organisations, and publications covering claims and risk management issues. All such learning opportunities are free to NHS organisations.

  16.  Organisations receive increasing discounts, ranging from 10%—30% on their contributions to CNST and the other NHSLA risk pooling schemes as they progress from Level 0 to Level 3 of the standards (Level 1: 10%, Level 2: 20%, Level 3: 30%). For a large acute hospital providing maternity services, the value of these discounts can be more than £500,000 per annum for each level achieved. Although this financial incentive to achieve the standards can be negligible for smaller, lower risk organisations which pay correspondingly less in contributions, all organisations complying with the standards should benefit from the associated investment in risk management practices by experiencing fewer safety incidents.

  17.  The levels achieved by organisations against the NHSLA standards over the past five years are shown in Figures D and E. These figures show improvement, especially in relation to the maternity standards. (Progress in the general standards may have been limited in recent years due to changes to the standards.)

  Figure D. Comparison of Levels achieved in the CNST or NHSLA general standards 2003-04—2007-08 (excluding Primary Care Trusts)

  Figure E. Comparison of Levels achieved in the CNST maternity standards 2003-04—2007-08

  18.  Assessment at the higher levels is optional and requires organisations to demonstrate a strong commitment to sound risk management practices which, in turn, requires the investment of considerable resources. Although the financial benefits of compliance almost certainly provide an incentive to some organisations, this alone does not account for the large number of organisations at Levels 2 and 3. Many organisations choose to be assessed at the higher levels because they consider that the NHSLA standards provide an excellent framework within which to manage risks. The National Audit Office report A Safer Place for Patients: Learning to improve patient safety, published in November 2005 stated that "Twenty-six percent of chief executives ranked NHSLA standards and evaluations as the chief driver for their board to improve patient safety". The respect for the NHSLA standards and assessments within the NHS means that achievement of the higher levels is seen by organisations as enhancing their reputation for safety.

  19.  For several years, the NHSLA has published summary data on all assessment outcomes in NHSLA Factsheet 4 on its public website at It now also posts copies of full assessment reports for each organisation on the site.

  20.  It is not possible to demonstrate a causal relationship between the introduction of the NHSLA risk management standards and assessments and improved patient safety, because of the complex environment of NHS care and the range of variables which would need to be considered. However, anecdotal evidence from those required to implement the standards, and the views of other stakeholders, suggest that they provide an effective framework within which to manage risks and thereby promote patient safety.

  21.  The NHSLA has always encouraged NHS organisations to offer explanations and apologies to patients when things go wrong. This approach is set out in an open letter from the NHSLA to all NHS Chief Executives. It is strengthened by the NHSLA risk management standards which contain a "Being Open" criterion, including the legal perspective. This complements the work of the National Patient Safety Agency (NPSA) and professional bodies such as the General Medical Council on this subject.

  22.  The reasons why people decide whether or not to claim are many and varied. Only a very small percentage of patient safety incidents result in a claim, so claims are not a proxy for negligence. The cost of resolving claims represents only part of the total cost of incidents to the NHS, which also includes increases in the length of patient stays in hospital and further treatment amongst other factors. Evidence that the risk management activities of the NHSLA have resulted in a reduction in the number of claims, or even prevented the numbers rising, would require proof of a negative ie an incident that would have given rise to a claim did not happen and thus no claim was made. It would also require the impact of NHSLA activities to be distinguished from those of the other agencies working in the field of patient safety, including the healthcare providers themselves, and some means of allowing for the successive reconfigurations which have had an impact on practice.

  23.  Moreover, there is no reason to expect to see a direct correlation between claims experience and levels achieved by organisations in the NHSLA risk management standards. This is due to a range of issues including the following:

    —  The geographical location of an organisation may have an effect on its claims experience, as certain parts of England have higher levels of claims, regardless of the quality of care provided;

    —  The current assessment level attained by an organisation reflects risk management practices at a specific point in time, whereas claims experience is historical;

    —  Many organisations have changed their size and services over time, which means that past claims experience is not an indication of current exposure or risk management;

    —  Major service reconfigurations create the need for a fundamental review of risk management systems and often result in a fall in assessment level attained, at least on a temporary basis;

    —  The personal circumstances of claimants can significantly affect the value of claims for similar injuries and thus the cost of a claim does not necessarily reflect the seriousness of the incident which gave rise to it;

    —  It is not mandatory for organisations to be assessed at the higher NHSLA levels and, for a variety of reasons, some may be content to remain at Level 1 even though they have robust risk management practices in place.

  24.  In addition to the risk management activities described above, the NHSLA shares appropriately anonymised claims data to aid research and risk management initiatives. Although the NHSLA has always shared claims information data within the NHS, since the Freedom of Information Act 2000 came into full effect on 1st January 2005, the NHSLA has responded to a total of more than 600 requests for information, just over half of which have been claims related and for research purposes.

  25.  Notwithstanding the initiatives undertaken to date, the NHSLA believes that further benefits for patient safety may be gained from the claims information that it holds and the 2008-09 Business Plan states that the NHSLA will seek new "means to promote learning from its experience of litigation that might help to reduce the number of incidents giving rise to claims against NHS organisations". Amongst other initiatives in support of this objective, the NHSLA is currently undertaking a project to review its systems to improve the quality of claims data for analysis, and scoping a project for the detailed analysis of a cohort of claims, in order to identify lessons learned to improve patient safety.

  26.  The NHSLA works collaboratively with other bodies to improve patient safety. The NHSLA is a signatory to the Charter for Patient Safety and is committed to implementing its objectives. The NHSLA has worked closely with the NPSA to determine how its claims data can best be used for the purposes of patient safety, and the NHSLA standards contain a criterion on Learning from Experience, which supports the work of the NPSA and other bodies.

  27.  The NHSLA is also a signatory to the Concordat between bodies inspecting, regulating and auditing healthcare and each year has been able to provide evidence of effective joint working with other Concordat signatories and other bodies. Specifically, the NHSLA provides assessment data to the Healthcare Commission from which assurance is taken as part of the Annual Health Check, and shares detailed assessment information with a range of other bodies such as the NHS Security Management Service, the National Institute for Health and Clinical Excellence and the Health & Safety Executive, to inform and support their work to improve safety.

  28.  In conclusion, the NHSLA has been able to make a positive contribution towards improving patient safety by:

    —  Using the unique experience and knowledge gained from the claims it manages to inform its own risk management activities;

    —  Delivering a comprehensive risk management programme of standards, assessments and education for all NHS Trusts;

    —  Sharing both claims and assessment data, in order to improve understanding about failures of care; and

    —  Liaising and working closely with other bodies to increase the impact of patient safety measures.

September 2008

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Prepared 30 October 2008