Welsh Risk Pool Services. Concerns, Claims Management and Learning from Events Assessment. Powys Teaching Health Board Final Report

Transcription

1 Welsh Risk Pool Services Concerns, Claims Management and Learning from Events Assessment Powys Teaching Health Board Final Report 2015/2016

2 CONTENTS Contents... 1 Background to the standard and scope of assessment... 2 Key findings... 4 Management of Concerns (Area for Assessment 8)... 4 Management of Redress Matters (Areas for Assessment 9-11)... 5 Claims Management (Areas for Assessment 18, 22 & 23)... 6 Learning from Events (Areas for Assessment 24-26)... 7 Additional findings... 9 Concerns Structures and Processes (Areas for Assessment 4 & 6)... 9 Informal Concerns (Area for Assessment 6A)... 9 Primary Care Concerns (Area for Assessment 6B)...10 Actions Arising from Previous Assessment (Area for Assessment 27)...10 Financial impact and trends in claims...12 Conclusion and next steps...17 Appendix 1 Analysis of Caseload and Activity for Clinical Negligence Matters by Health Body...18

3 BACKGROUND TO THE STANDARD AND SCOPE OF ASSESSMENT The Concerns and Compensation Claims Standard (the Standard) is designed as a framework to support the compliance by Health Bodies with the NHS (Concerns, Complaints and Redress Arrangements (Wales) Regula tions 2011 (the Regulatio ns) and the Welsh Government s Guidance on Putting Things Right (the Guidance). The Standard is drafted by the Welsh Risk Pool Service in conjunction with the Welsh Government and colleagues from the service to ensure that it properly reflects the spirit of the Regulations and Guidance. It is assessed annually by a joint team from the Welsh Risk Pool Service and Legal & Risk Services. The Standard is broadly split into the following distinct areas: 1. Management of Concerns 2. Management of Redress cases 3. Claims Management 4. Learning From Events At the request of the Welsh Government, additional information is also being collected and assessed in designated areas and separate scores for each area will be provided where appropriate. The full standard covers both the documented arrangements plus testing of a sample of concerns and claims. Whilst the historical approach has confirmed that, with respect to concerns and claims management, the documented arrangements were largely in place, there were differing levels of implementation due to the volume of concerns and claims being managed and the significant pressures that this was placing on Health Bodies and Trusts. Hence for the purposes of this assessment, there has been a revisiting of certain arrangements regarding concerns management. The need to learn from events has always been in place for NHS Wales in respect of claims management but the introduction of the Regulations has highlighted and formalised the need for robust and organisational wide arrangements. Previous assessments have highlighted that these arrangements were not mature across NHS Wales both in terms of documented approaches and implementation. However, there is evidence of some maturing and positive evidence of individual learning was present in all assessments. The approach for 2015/2016 has been to focus on key areas with an increased emphasis on the effectiveness of arrangements: P a g e 2

4 1. Management of concerns raised (Regulation 24) 2. Management of Redress cases (Regulation 26-33) 3. Practical claims management and adherence to WRPS Claims Management 4. Learning from Events These key areas have been retained to provide some year on year comparison as against the assessment for 2014/2015. Individual scores have been provided for each additional area of assessment. This report is designed to summarise key findings and operational leads have been provided with detailed feedback on findings to provide more information. The report also provides further comment where the assessor considered that arrangements had progressed or deteriorated in year. The table below confirms the scores achieved for each area of assessment. Key Areas for assessment Percentage achieved Management of concerns (AFA 8) 61.70% Management of Redress matters (AFA 9A- 11 inclusive)) 65.37% Claims Management arrangements 18, 22 & 23) (AFA 83.01% Learning from events (AFA inclusive) 20.58% Additional Areas for assessment Concerns Structures & Processes (AFA 4 & 6) Percentage achieved 90% Informal Concerns (AFA 6A) 58.75% Primary Care Concerns (AFA 6B) 73.79% Actions Arising from Previous Assessment (AFA 27) 25% P a g e 3

5 KEY FINDINGS Management of Concerns (Area for Assessment 8) The key timescales for the management of concerns are: Acknowledgment within 2 working days Initial response within 30 working days Final report within 6 months if the matter cannot be concluded within 30 working days and no qualifying liability in tort is identified An offer of Redress within 12 months if a qualifying liability in tort is present. The Regulations require that appropriate correspondence with the person raising the concern is maintained and that any delays are communicated with explanations. The Regulations are prescriptive in respect of what must be included within the response although the format, style and language is determined by the Health Board. A sample of 26 matters was selected and testing undertaken against the requirement of the regulations. Area tested Percentage achieved Report provided in all concerns 96% Report provided within 30 working days 23% Communication regarding timescales 50% Final report within 6 months 85% Content consistent with requirements of The 59% Regulations Report of good standard (sets out investigation, 51% language and conclusion) Concern concluded upon issue of final response 92% (i.e. no further communication regarding concern or investigation) Resolved without referral to Public Service 100% Ombudsman From the testing undertaken an overall score of 61.70% was achieved. The detailed findings for each matter tested have been shared with the Health Board lead to ensure that action can be taken. The testing confirmed the following: The current compliance rate in respect of the 6 month timescale is relatively good although the 30 working day timescale is not always met but reflects an improvement in performance P a g e 4

6 From the cases reviewed across the period of assessment, there was a lack of consistency in the content and layout of the response letters however, it is noted that the Health Board introduced a new policy in December 2015 containing a new template and reports subsequent improvement in this area Final responses did not meet all of the specific content requirements of the Regulations and sometimes did not properly or fully answer the queries/concerns raised. Specifically meetings were not always offered and records should always be offered where relevant to the issues in question however, it is noted that the Health Board introduced a new policy in December 2015 containing a new template and reports subsequent improvement in this area Informal responses were often sent where the concern should have been dealt with formally There was inconsistency in the use of explicit terms of reference in response letters; these are recognised as good practice Whilst remedial action was dealt with in some responses, there was a lack of explanation and evidence provided regarding remedial action in some responses and how this is addressed The acknowledgement letters did not include terms of reference for the investigation The complainant was not always kept adequately updated as to the progress of the concern There were failures to identify allegations of harm and to provide an explanation of why there was no qualifying liability. Management of Redress Matters (Areas for Assessment 9-11) The Regulations require that when undertaking an investigation consideration is given to the possibility of a qualifying liability in tort. A qualifying liability in tort may be present if harm has arisen and it meets the necessary criteria which are based on legal definitions. Where it is considered that there is or may be a qualifying liability which would attract financial compensation of 25,000 or less, then the Redress arrangements should be engaged and a decision made whether or not an offer of Redress should be made. A sample of 10 Redress Matters were selected and reviewed per the following Area tested Percentage Scored Interim reports (Regulation 26 response) 50.2% Final responses where it is determined that no 50.4% qualifying liability exists Regulation 33 response 65.9% Offer of Redress 95% P a g e 5

7 From the testing undertaken an overall score of 65.37% was achieved. The detailed findings for each matter tested have been shared with the Health Board lead to ensure that action can be taken. The testing identified the following: There were issues regarding non-compliance with timescales. Investigations were sometimes convoluted as was the process of drafting and approving responses The Redress Panel seems to work well and adds robustness to the quality assurance process Acknowledgement letters were sometimes not sent in time but did not include as much detail as they could about the terms of reference of the investigation Because of the current situation, a great deal of support is being provided by Legal &Risk Services (L&RS), both advising in writing and face-to-face support given the problems experienced by the Health Board in staffing its team during the period of assessment. However, a concerns manager has been appointed and is due to start in post imminently. This should make a huge difference to next year s assessment as, at present, the Assistant Director is taking on the additional responsibility of coordinating the investigations and drafting the responses The holding letters and ongoing communication should be improved. The assessors were of the view that consideration should be given to requiring the investigating officers, rather than the central team, to communicate with the complainants during the investigation? Template letters should be used to ensure consistency and compliance with the content requirements The detail and tone of the letters was generally good but let down by the conclusions. The key area for improvement for the Health Board is to ensure that qualifying liability is clearly explained and is applied to the facts in all responses. It is very important when dealing with a Regulation 24 response (save for those where the financial value is likely to exceed the threshold) that all issues have been clarified as this is meant to be a final response. The L&RS template wording explaining qualifying liability should be used in all Regulation 24, 26 and 33 responses. Claims Management (Areas for Assessment 18,22 & 23) In recent years, NHS Wales has experienced a significant growth in the number and value of claims. The growth in claims has put significant pressure on Claims Management Functions across Wales. As at 31 st March 2016 the Legal and Risk Services database had 15 open clinical negligence P a g e 6

8 matters for the Health Board against 13 open as at 31 st March 2015, which indicates a slight increase. A sample of ongoing claims were selected and reviewed with the findings set out below. Area Percentage Scored Reimbursement processes N/A - no claims Management of claims 74.04% Audit arrangements 75% Overall a score of 83.01% was achieved. The review of the Claims Management function demonstrated a reasonably proactive and knowledgeable approach with a good level of compliance against the Welsh Government s delegated authority to manage claims locally. Learning from Events (Areas for Assessment 24-26) The need to learn from events is critical to ongoing improvements in quality and safety across NHS Wales. The Evans review highlighted the significant challenges being experienced by NHS Wales and recognised that it is a complex area. The focus of the assessment in this area was to consider the documented arrangements to ascertain whether they provided a cohesive approach to identifying issues and associated learning across the Health Board. Overall, the Health Board achieved a score of 20.58% reflecting that arrangements are not yet in place and embedded across the organisation. In particular: There has been no significant changes since the previous period of assessment save for the development of the Patient Experience Steering Group (PESG) which has an expanded role in relation to learning. Its activities during the period of assessment cannot be assessed but it is noted that Learning from Concerns is a standing agenda item. There is still no formalised or defined or mapped pathway/procedure for learning from events which indicates how the Health Board learns, monitors and evaluates and thereafter provide assurance or consistent arrangements and quality in learning. This does not mean that no learning is happening as practically there are clear pockets of good practice and learning occurring. There was also evidence of better commitment and engagement from Localities to learning P a g e 7

9 and their practical activities in identifying trends and actions and when appropriate considering learning from other areas including incidents and concerns.there were issues of lack of cross Health Board learning inconsistency of approach and no evidence of evaluation of learning to determine service improvement. Therefore because of the lack of definition and pathway, inconsistencies appear and consequently assurance cannot be provided to the Board of the adequacy of the current arrangements in place. It is acknowledged that for 10 months of the period of assessment the Health Board had senior management deficit however, from the evidence provided, the impression is that against the problems experienced effectively the Health Board has maintained its status quo in this area and as a consequence, the conclusions from last year are reiterated. P a g e 8

10 ADDITIONAL FINDINGS Concerns Structures and Processes (Areas for Assessment 4 & 6) These amalgamated Areas for Assessment review the structures, teams, training, policies and procedures in place to manage concerns. The documented arrangements are good with appropriate policies and procedures being based upon the Regulations and the Guidance. An overall score of 90% was achieved. No significant issues were identified. Informal Concerns (Area for Assessment 6A) The Regulations and the Guidance provides for some concerns to be resolved at the point of service delivery and within the timescales agreed (ideally within 24 hours). It was identified from the Evans Review that health bodies have developed different processes for managing, investigating and responding to such on the spot or informal concerns, hence the Welsh Government requested that this should form part of the assessment. The assessment considered: Area Percentage Scored Approved appropriate policy/process in place 50% Recording of informal concerns 90% Management in accordance with approved 70% appropriate policy/process in place Evidence of learning through organisational 25% learning process/structure Overall Score 58.75% A number of specific issues were highlighted as follows:- There is a need to define informal and provide some appropriate guidance on management and recording of information and outcomes on Datix The policy documentation provided excludes informals from the formal arrangements under the Regulations. It is implicit that the Putting Things Right Guidance is adopted in this regard. It is recommended that the policy is revisited to provide sufficient guidance on: the definition of an informal concern, what triggers/determines whether a concern should be dealt within under this policy/procedure and what P a g e 9

11 the timescales are for acknowledging and concluding the Responsible Body s response to the concern It is important that everything is uploaded and recorded on Datix so that the concern raised and response outcome achieved are clear Where there is an offer of follow up or the provision of additional information, this should be completed and recorded on Datix Given the issue with timeliness of receipt to conclusion, the Health Board may wish to consider increasing the timescales for responding to informal concerns, which albeit being outside guidance but maybe more realistic and in line with the Evans review. Primary Care Concerns (Area for Assessment 6B) The Regulations and the Guidance provide that concerns notified by a primary care provider relating to the primary care provider s contract or arrangements under which they provide primary care services are dealt with through different mechanisms relating to the Regulations covering primary care. The Health Board score 73.79% against this Area for Assessment. The existing policy reflects the Putting Things Right Guidance and the only query raised is whether additional guidance might be helpful given the number of primary care concerns that the Health Board deals with routinely and the nature of its business. There is evidence of such concerns being recorded but the data recorded is incomplete. However it is noted thatthe paper files will be retained. Of 12 randomly selected concerns reviewed, 7 were passed to the primary care contractor to investigate and respond to, of which only one of the primary care contractors provided a copy of their final response for registering on Datix. The remaining 5 were investigated with the primary care contractor with the Health Board generating the final response. Specific comments have been provided direct to the lead regarding cases reviewed. Work is being taken forward to strengthen learning from concerns via the Patient Experience Steering Group. The group was revised in October 2015 and the first formal meeting was held 17 May The indication is that at relevant times, where issues had been identified, there was some evidence of actions being reported to the person raising the concern in the final response. However, there was no linked evidence of actions locally in either Datix or the linked Word file although the comments above are noted. Actions Arising from Previous Assessment (Area for Assessment 27) This Area for Assessment reviews the evidence of action taken by the Health Board in response to the previous assessment report P a g e 10

12 The Health Board scored 25% against this Area for Assessment. An action plan has been developed to address some of the issues identified in last year s assessment (together with Internal Audit recommendations) specifically regarding concerns and redress management of which improvements are being reported. However, it is unclear what actions have been taken regarding recommendations in other areas of the previous assessment. The indication is that in organisational learning many of the issues identified in last year s assessment have been maintained rather than progressed. P a g e 11

13 FINANCIAL IMPACT AND TRENDS IN CLAIMS In recent years, NHS Wales has experienced a significant growth in the number and value of claims involving negligence. All clinical negligence claims are professionally managed by Legal and Risk Services and the table below provides a summary of open clinical negligence matters by financial year. A 60% increasee in open matters has been experienced between 1 st April 2009 and 31 st March 2016 which equates to an averagee of just over 8.5% each year. However, the rise experienced during 2013/2014 was most marked at 23% and since then, the rate of increase has continued to reduce in 2015/2016. The number of open claims has remained relatively static in 2015/2016 compared to the previous year. 80 DEL resource utilised by financial year ( m) /10 10/111 11/12 12/13 13/14 14/15 15/16 The increase in the number of claims has also impacted on the Welsh Risk Pool Service and the graph below shows the in year resource utilised on settled claims and annual payments for claims settled using a periodical payment order. P a g e 12

14 3000 Open Clinical Negligence Matters /10 10/11 11/12 12/13 13/14 14/15 15/16 The DEL resource is sourced from the healthcare budget for NHS Wales and in 2015/2016 the expenditure of m which is in excess of 1.16% of the NHS budget. The table below provides a more detailed breakdown of expenditure with 2014/2015 comparative Expenditure heading Reimbursements to members for clinical negligence matters 55,775 40,616 Reimbursements to members for personal injury matters 3,038 2,331 Reimbursement to members - other claims Former Health Authority claims managed by WRPS 2, Periodical Payments annual payments Movement on claims creditor (amounts paid by members but not yet claimed from WRPS) Total 2014/2015 m 2015/ /2016 ' 'm ,174 9,082 8,062 21,392 78,043 74,647 During 2015/2016 the WRPS reimbursed 40.6m to members in respect of 321 clinical negligence matters. During the course of a claim the responsible P a g e 13

15 body will make payments which include damages, claimant costs and defence disbursements. The life cycle of a claim may last many years, especially for large value claims and it is not uncommon for members to submit a number of interim claims for a matter before it is fully concluded. Therefore, the expenditure in year will relate to both finalised and ongoing matters. Claims received for reimbursement are classified by speciality and the table below provides a breakdown of the number of claims and the value of reimbursements made. Speciality Financial 000 No. of Claims 14/15 15/16 14/15 15/16 Value of reimburs ements > 1m No. of claims > 1m Maternity 15,747 13, ,433 1 Trauma and Orthopaedics General Surgery 8,837 4, ,765 3, General Medicine 3,177 1, Emergency Department 2,873 2, Mental Health 2,598 2, ,002 1 Pathology 2, Nursing 2, Ophthalmology 1,761 1, Gynaecology 1, Colorectal 1,727 1, Vascular Surgery 1, Primary Care 1, Therapies 1, All other specialties 5,433 8, ,574 1 Grand Total 55,775 40, ,008 3 In contrast to 2014/2015, during 2015/2016 the WRPS reimbursed amounts in excess of 1m in respect of 3 clinical negligence matters with a total value of 5M compared to the previous years 12 claims totalling 18.5M. These P a g e 14

16 claims were finalised in year and have a Periodical Payment arrangement for future care. A further four cases have settled with a PPO order in year and the estimated value for the future liabilities for these cases is 18M. Of the claims submitted for reimbursement, a total of 258 were finalised in year (total reimbursements in year of 18.2M) and the total cost associated with these claims is provided below with 2014/2015 as a comparative. 2015/2016 Value of damages No. Damages m Claimant Costs Defence Costs Claimant costs as a % of Damages Time between incident and date of claim (years) Up to 25k 101 1,350 3, % k - 50k 44 1,536 1, % k - 100k 37 2,596 1, % k - 200k 34 5,426 2, % k- 500k 27 8,918 3, % k - 1m 8 5,184 1, % m+ 7 13,525 2, % 2.49 Total ,535 17,295 2,390 45% /2015 Value of damages No. Damages m Claimant Costs Defence Costs Claimant costs as a % of Damages Time between incident and date of claim (years) Up to 25k 99 1,361 2, % k - 50k 41 1,478 1, % k - 100k 47 3,425 2, % k - 200k 17 2,629 1, % k- 500k 24 7,248 3, % k - 1m 15 11,338 2, % m+ 8 19,505 2, % 3.78 Total ,984 17,350 2,103 37% 2.29 P a g e 15

17 It can be seen from the above data, claimant s costs as a proportion of damages have increased in every category and to a total average of 45% compared to 37% in the previous year. The most notable increase being for claims with damages under 25K where there has been a 16% increase for costs compared to damages on the previous year. ( 2014/ %,2015/ %). The data emphasises the importance of the Putting Things Right initiative which could help to avoid formal litigation for claims with damages valued at less than 25K and help to avoid the disproportionate value of costs compared to damages associated with lower value claims. These claims fall within the threshold of Putting Things Right and afford NHS Wales with a significant opportunity to address issues within a timely manner and, where possible, avoid formal litigation. Once a matter become litigious it is clear from the table above that the claimant costs place further burden on NHS resources. At any given time the claims managed by Legal and Risk Services cover a large time frame in terms of date of incident. However, using the finalised claims with cumulative costs over 25,000 as an indicator, the claim rate as a percentage of finished consultant episodes is 0.027%. Whilst claims as a percentage of all care are low the financial impact is much greater and the expenditure of m represents 1.22% of the total Health and Social Care budget for NHS Wales for 2015/2016. This excludes the full cost of claims settled using a periodical payment order and including the 18M the percentage would increase to 1.57%. P a g e 16

18 CONCLUSION AND NEXT STEPS NHS Wales has experienced an unprecedented number of new clinical negligence claims in recent years, although the rate of increase has slowed down considerably in 2015/2016 compared to previous years. (2,602 at the end of 2014/2015 compared to 2,607 open cases at the end of 2015/2016) and the cost of these is met directly from the healthcare budget available to deliver services. The introduction of the Redress Regulations in 2011 has provided NHS Wales with an opportunity to address concerns in a consistent and comprehensive manner with the objective of improving quality and safety and avoiding, where possible, unnecessary and costly litigation. Currently, 40% of the cases reimbursed by the WRPS involve damages of 25,000 or less which reflects the significant opportunities available to NHS Wales. The assessment has reviewed the arrangements across the Health Board for the management of concerns and claims and subsequent learning. It is evident that in most organisations, processes are becoming more mature and embedding. Where areas for improvement have been identified these are outlined in this report. It is recommended that the Health Board considers this report and takes steps to consider the areas highlighted for improvement. P a g e 17

19 APPENDIX 1 Analysis of Caseload and Activity for Clinical Negligence Matters by Health Body Grand 2015/2016 ABMU BCU AB C Taf HD C&V Powys WAST Velindre PHW Total Opening Month Closing Month Movement Grand 2014/2015 ABMU BCU AB C TAF HD C&V Powys WAST Velindre PHW Total Opening Month Closing Month Movement The above tables demonstrate the significant slowdown in the rate of increase of open clinical negligence cases in 2015/16 compared to the previous year. P a g e 18