Abstract
The NHS Litigation Authority (NHSLA) has a remit to contribute to improvements in the safety of NHS patients and staff, and this article describes the ways in which information on the clinical negligence and non clinical liability claims managed by the Authority are used for risk management purposes. In March 2011, the NHSLA delivered a pioneering conference on Learning from mistakes in conjunction with claimant solicitors, Irwin Mitchell which considered the ways in which lessons have been learned from errors and explored opportunities for further improvements. The article concludes that the NHSLA has done much to promote learning from claims.
The NHS Litigation Authority (NHSLA) is a special health authority which manages clinical negligence and non clinical liability claims made against NHS organisations in England. Established in 1995, the sole function of the NHSLA was initially to administer the Clinical Negligence Scheme for Trusts (CNST), a risk pooling scheme in respect of clinical claims arising from incidents on or after 1st April 1995. From 1st April 1999, the NHSLA's responsibilities were expanded to include non clinical claims under the Liabilities to Third Parties Scheme (LTPS).
The aims of the NHSLA are set out in its' Framework Document 1 and include: “to contribute to the improvement of the quality of patient care by providing incentives within the schemes for NHS bodies to improve cost effective clinical and non clinical risk management …, and by disseminating relevant information on clinical and non clinical risks highlighted by claims management experience”.
The NHSLA's role to contribute to improvements in risk management in the NHS, and thereby the safety of patients and staff, has been met historically via a programme of standards and assessments supported by education.
Claims Data
In 2009/10, 6,652 clinical and 4,074 non-clinical liability claims (including potential claims) were notified to the NHSLA. During the same period, the payments made in respect of claims recorded over several years were £651m for CNST and £34m for LTPS claims. For those CNST claims where damages were paid to the claimant, the total payments were £460m as follows: Damages, £297m (65%); Claimant legal costs, £121m (26%); Defence legal costs £42m (9%). 2
Maternity services account for the highest total value and second highest number of clinical negligence claims managed by the NHSLA. Since the NHSLA was established 15 years ago, around 11,500 obstetrics and gynecology claims with an estimated value of £4.4bn have been notified. 3 Of the payments made by the NHSLA on clinical claims in 2009/10, just over £209m (30%) related to maternity care. In the same year, 502 new maternity claims were notified. Information on the number of negligence claims reported by NHS organisations to the NHSLA each year can be found in NHSLA factsheet 5. 4
Standards and assessments
Most NHS organisations providing healthcare are required to be assessed against the NHSLA risk management standards. The standards are based on factors which give rise to claims, and are designed to provide a framework to support organisations in developing, implementing and monitoring the effectiveness of systems to prevent patient and staff safety incidents and enable such incidents to be dealt with appropriately when they do occur. The specific requirements within the standards are based on guidance and recommendations issued by relevant professional and other bodies.
When introduced in 1995, the CNST standards were the first set of clinical risk management standards of their type for the NHS. Over the years, the standards evolved and then underwent a fundamental review starting in the mid 1990s. Combining elements of the existing standards with risk areas identified through an analysis of claims data, literature searches, and extensive consultation, the revised standards brought together organisational, clinical and health & safety risks within a single set of standards for each type of healthcare organisation. Organisations which can demonstrate compliance with the progressive levels of the standards at assessment, receive a corresponding discount from their contributions (premiums) to the NHSLA schemes. Standard 5: Learning from experience, requires organisations to have processes in place for incident reporting and to manage concerns, complaints and claims, to investigate such events, analyse and learn from them and make safety improvements.
The NHSLA standards are reviewed on an annual basis and for 2011/12, 5 some changes have been made to reflect claims experience. For example, a new criterion on managing the risks associated with the prevention and management of Venous Thromboembolism (VTE) has been introduced: over each of the past five years, around 140 VTE claims have been notified to the NHSLA, with a total estimated value of £112m. In addition, based on the early findings of the solicitors' risk management reports on claims initiative described below, two pilot criteria have been introduced on managing the risks associated with screening procedures and diagnostic testing procedures.
In response to the high number and value of claims, the NHSLA launched separate, specific standards for NHS organisations providing labour ward services in June 2003. Like the other NHSLA risk management standards, the CNST maternity standards 6 have been developed on the basis of claims received and consultation with stakeholders, and are supported by national guidance from relevant bodies.
Other ways in which claims information is used for risk management purposes
In addition to informing the risk areas addressed in its standards, the NHSLA enables claims data to be used for safety purposes in other ways. Since long before the Freedom of Information Act 2000 came into effect, the NHSLA has responded to claims data requests from clinicians and researchers to inform their work by providing them with the anonymised details of individual claims. In the five years to 31 March 2011, these included more than 100 requests for information on surgical and anaesthetics claims and almost 50 for maternity claims. A number of articles have been published in various clinical journals which make use of this information.
An extract of the NHSLA claims database is also given to the National Patient Safety Agency to provide them with ready access to claims information to inform their work.
Claims data is also used by the NHSLA and its solicitors to prepare articles for publication. For a number of years, two NHSLA publications regularly provided information on claims, either via case studies or summary data: the NHSLA Review, a publication primarily for risk managers and NHSLA Journal, targeted at clinicians. For example, one issue of the NHSLA Review 7 included an article on “Error in Accident and Emergency Medicine: a review of cases settled under the CNST scheme during a 12 month period”.
In July 2009, the NHSLA published an in depth study of 100 stillbirth claims 8 which looked at the risk management aspects. During 2010/11, the NHSLA has undertaken an analysis of all maternity claims with an incident date on or after 1st April 2000, notified by 31st March 2010 i.e. more than 5,000 claims, using the descriptive information on the claims database. A report of the findings will be published during 2011. For each category of maternity claim, the key risk issues will be considered, links to the CNST standards identified, and information on relevant guidance to manage the associated risks provided. Additionally four categories of maternity claims have been selected for further study using information contained in current and recent claim files and the findings will also be published in 2011.
Added value of claims management process
The process of managing claims may add to the safety agenda in several ways:
a more detailed investigation may take place than when the incident occurred more is known about what happened because of the time delay between the incident and claim more thorough arguments are developed on both sides benefit of external input and opinion from clinical experts and others opportunity to follow up on recommendations made when the incident occurred to see if they have been implemented and made a difference opportunity to identify any further actions
For several years, solicitors on the NHSLA's clinical panel have been required to include a section on the risk management aspects of the incident(s) giving rise to claims in their reports which are shared with the healthcare organisation. Beginning in February 2010, this approach was strengthened and the solicitors now prepare a separate risk management report on all new CNST claims where they are instructed.
Solicitors' risk management reports on claims
By the end of March 2011, reports had been prepared on around 2,000 claims. Copies of the reports are sent to the healthcare organisation and to the NHSLA. The former should consider the report and determine whether any further action to improve safety is indicated and, if so, take the necessary action. The NHSLA records, reviews and analyses the reports and, to close the learning loop, will follow up on the action taken by the healthcare organisation on either an individual or collective basis via an annual review exercise. The information gathered will be used to support wider learning in the NHS by:
preparing a data analysis publishing an annual report producing case studies sending pertinent data to researchers, professionals and other bodies developing training materials informing future versions of the NHSLA standards.
Constraints
Although claims may add knowledge to the safety agenda, they represent only a very small proportion of the number of adverse incidents that occur in the NHS. Thus, relying on them in isolation for risk management purposes could be misleading. In all cases, a healthcare organisation should be aware of an incident, series or incident trend, long before the NHSLA knows about the situation.
Further, whilst the time delay between an incident and claim may be helpful for learning purposes, in many cases the incident giving rise to a new claim may have occurred in a different clinical environment and offer no practical learning points for current practice.
The NHSLA database is used primarily for the management of claims. The risk management information currently recorded, comprises a short narrative of the incident and cause, injury, speciality and location codes. The detail in the narrative is limited and the codes are broad.
Obligations in the NHS Code of Practice on Confidentiality 9 go further than the Data Protection Act 1998 and prevent members of the NHSLA risk management function from viewing confidential patient information without specific consent, although they can view anonymised claims data. This restriction necessarily impacts on the NHSLA's ability to use claims for learning purposes. Attempts by the NHSLA to obtain the support of claimant solicitors to address this situation have been unsuccessful.
The NHSLA has an obligation to minimise the burden it places on organisations delivering patient care. Large volumes of information on incidents are published by the NPSA and others, and the NHSLA needs to ensure that any claims information adds value. Further, there is evidence that many healthcare organisations do not use the lessons to be learned from their claims to improve services and the NHSLA must ensure that any requirements it introduces are proportional. This situation is compounded by the fact that those organisations that are managing their risks appropriately are likely to respond positively to NHSLA risk management initiatives linked to claims, whereas those with weak internal systems in place, reflecting a poor learning culture, are less likely to do so.
Conclusion
The NHSLA has done much to promote learning from claims. However, implementation of the solicitors' risk management reports on claims initiative has introduced a clearer demonstrable link between the Authority's claims management and risk management activities. By ensuring that healthcare organisations are informed about the lessons to be learned from incidents giving rise to their own claims and have acted accordingly, and by sharing lessons more widely, the NHSLA will continue to contribute to a safer NHS.