From litigation to learning

by Mike Farrar PwC NHS NEDs programme chair

Email +44 (0)20 7804 4019

by Helen Vernon CEO, NHS Resolution

On 10 April 2019 our next NHS NEDs briefing session will tackle the importance of ‘Creating a just and fair culture - how can boards create the right climate and culture for patient safety and staff support?’ Ahead of the session, our programme chair Mike Farrar asked our guest speaker and NHS Resolution CEO Helen Vernon for her insights into how they go about supporting NHS staff.

Mike Farrar - Can you tell me a bit about NHS Resolution?

Helen Vernon - Our purpose is to provide expertise to the NHS to resolve concerns fairly, share learning for improvement and preserve resources for patient care. In relation to our Claims Management service, our aim is to deliver compensation as quickly as we can where it is due, whether that be a few hundred pounds due to an extended stay in hospital or a multi-million pound settlement to someone who has suffered life-long harm.

Mike - What is the current cost of clinical negligence?

Helen - In 2017/18, the total number of new clinical claims for compensation against the NHS in England we received was 10,673 (a small reduction from the previous year) but more than £1.63 billion in damages was paid to claimants.

Mike - Do you think trusts are too wary to apologise when things go wrong?

Helen - We support transparency and candour, which is not only the right thing to do ethically, but also likely to prevent a claim than lead to one. When things go wrong, patients and their families need to understand what has happened. The first step is apologising when things have gone wrong. Saying sorry is always the right thing to do, it is not an admission of liability, it acknowledges that something could have gone better and is the first step to learning from what happened and preventing it recurring.

Our ambition is to reduce the need for expensive litigation and for resolution to be achieved in its broadest sense with families and healthcare staff where a patient suffers avoidable harm. This means increasing the use of mediation in the NHS, early transparency and demonstrating that lessons have been learned to prevent incidents from happening again.

Mike - What actions is the organisation taking to improve patient care?

Helen - We have a three-pronged approach. Firstly, research. We conduct deep dive studies of the claims data we collect. For example, we published Learning from suicide-related claims: a thematic review of NHS Resolution data that examined some of the factors that contribute to suicide-related claims and examined the quality of investigations following these often tragic incidents. We made nine recommendations for NHS trusts and national bodies to reduce the risk of these incidents and to improve the response of trusts.

Secondly, early Notification. We are moving upstream to capture the most serious incidents concerning brain injury at birth, share learning in real-time and to support NHS staff responding to them. Since April 2017, trusts have been required to notify maternity incidents, which are likely to result in severe brain injury within 30 days. These relate to babies born at term, following labour, with a potentially severe brain injury diagnosed in the first seven days of life.

And thirdly, incentives. Maternity claims represent the biggest area of spend for us. Of the clinical negligence claims notified to us in 2017/18, obstetrics claims represented ten percent (1,067) of clinical claims by number, but accounted for 48% of the total value of new claims, £2,166.3 million of the total £4,513.2 million.

We launched our maternity incentive scheme in collaboration with NHS system partners. Using the pricing of indemnity as a lever, the scheme rewards trusts meeting ten safety actions designed to improve the delivery of best practice in maternity and neonatal services. We built in provision for the incentive fund into our maternity pricing of the Clinical Negligence Scheme for Trusts, collecting an additional 10% of the maternity contribution from members.

Mike - Have you any indication of the success of the first year of your maternity incentive scheme?

Helen -  The results so far are promising and in year one:

  • 75 trusts met all ten actions received their 10% contribution to the incentive fund back and in addition have been awarded a proportionate share of the remaining funds;
  • All 132 eligible trusts participated in the scheme; and
  • 57 trusts that did not meet all ten actions received some funding linked to robust action plans to enable them to meet the outstanding safety actions.

The scheme has delivered significant improvements in quality of reporting to NHS Digital and 100% sign up to the Mothers and Babies: Reducing Risk through Audits and Confidential Enquiries across the UK (MBBRACE) National Perinatal Review Tool.

Mike - What advice do you have for NHS non-executive directors?

Helen - We annually update and provide claims scorecards which contain ten years of clinical and non-clinical claims data and include details about open and closed claims. These are particularly useful for anyone from Board to ward to help members understand their value and volume of claims by specialty and cause. Getting to grips with claims data and importantly, making this visible to the organisation at board level can help to invest in and target interventions aimed at improving patient safety. We would encourage senior leaders to know their numbers and consider claims as an integral part of their role in governance.

Mike - How important is learning from claims?

Helen - It is important that we do everything we can to learn from what goes wrong in healthcare. We undertook research into why people make claims for compensation, which demonstrated how important it is to be transparent with patients and their families, and to involve them in investigations while supporting the NHS staff involved.

That is why we are committed to sharing what we know about the causes of claims with the NHS in order to improve healthcare and prevent incidents happening in the first place and to finding ways of resolving cases, such as mediation, which keep patients and NHS staff out of court.

We will always encourage and support our NHS trust members in doing what is right, regardless of the potential for a claim.

Mike - Thank you Helen. More details about this event and our NHS NEDs programme can be found on our website:

by Mike Farrar PwC NHS NEDs programme chair

Email +44 (0)20 7804 4019

by Helen Vernon CEO, NHS Resolution

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