NHS Litigation Authority
Annual report and accounts 2015/16
Summary
Resolve and learn
1
NHS Litigation Authority Annual report and accounts 2015/16 Summary
15,137
993
270
the total number of new
claims for compensation
against the NHS in England
received by NHS Litigation
Authority
referrals about the
performance of doctors,
dentists and pharmacists
handled by our National
Clinical Assessment Service
appeals regarding
community pharmacy
applications managed by
our Family Health Services
Appeal Unit
£18.7
million
of incentive payments to the
NHS made on behalf of the
Department of Health to
support the Sign up to Safety
campaign
Our 20th year
In the year that the NHS Litigation Authority
(NHS LA) celebrated its 20th anniversary, we set
ourselves a challenging strategic plan to increase
our operational effectiveness whilst supporting
the NHS to reduce harm through learning and
effective incentivisation. A Triennial Review of our
operations concluded that we were efficient and
effective, and we continued to drive a programme
of improvement in all of our functions against a
background of high volumes of work.
We resolved 16,459 claims brought against the
NHS in England, our National Clinical Assessment
Service (NCAS) handled 993 referrals about the
performance of doctors, dentists and pharmacists
within the NHS, and the Family Health Services
Appeal Unit (FHSAU) addressed 270 appeals to
the results of applications to join the
Pharmaceutical list in 2015/16.
New clinical negligence claims in 2015/16 fell
in number by 4.6% to 10,965 compared with
11,497 received in 2014/15. Damages paid to
patients rose from £774.4 million to £950.4
million, an increase of 23%.
Total payments relating to our clinical schemes
increased by £319.0 million (27%) – from
£1,169.5 million to £1,488.5 million. In 2015/16
we received 4,172 new non-clinical claims,
typically employers’ and public liability claims –
a fall of 13.2% compared with the 4,806 received
in 2014/15.
Of great interest to our Members and the wider
public will be the provisions for our claims
against our indemnity schemes, which have
increased by £27.8 billion (see figure 9). The
provision represents the value in today’s prices
of the cost of claims arising from harm that
occurred up to 31 March 2016. Of the increase
in the provision, £2.5 billion relates to claims
arising from another year of activity and changes
in the assumptions used to calculate the
provision. A further £25.5 billion of the increase
is as a result of the discount rate change.
This is an accounting adjustment determined by
HM Treasury, and is designed to show the value
of future cash-flows to settle these liabilities in
today’s prices: £1 today might be worth more
or less in the future.
We continue to receive and defend a high
number of claims, which resolve without
a payment of damages: 4,935 in 2015/16.
We continue to resolve justified claims as quickly
as practicable and closed a total of 16,459
clinical and non-clinical claims in 2015/16.
NHS Litigation Authority Annual report and accounts 2015/16 Summary
2
Table 1: The year at a glance
2014/15
2015/16
Change
Funding for clinical schemes
Income from Members
Funding from DH (budget)
£1,048.0m
£112.25m
£1,419.5m
£142m
£371.5m
£29.8m
35%
Total funding
£1,160.3m
£1,561.5m
£401.3m
35%
Payments in respect of clinical schemes
Damages payments to patients
Claimant costs
Defence costs
£774.4m
£291.9m
£103.2m
£950.4m
£418.0m
£120.1m
£176.0m
£126.1m
£16.9m
23%
Total payments
£1,169.5m
£1,488.5m
£319.0m
27%
Funding for non-clinical schemes
Income from Members
Funding from DH (budget)
£54.5m
£13.8m
£51.1m
£11.5m
(£3.4m)
(£2.3m)
17%
Total funding
£68.3m
£62.6m
(£5.6m)
8%
Payments in respect of non-clinical schemes
Damages payments to patients
Claimant costs
Defence costs
£26.1m
£20.7m
£6.7m
£26.7m
£25.0m
£7.7m
£0.6m
£4.3m
£1.0m
2%
21%
Total payments
£53.5m
£59.4m
£5.9m
11%
NHS LA administration of schemes
Clinical
Non-clinical
£9.3m
£3.7m
£9.4m
£3.2m
£0.1m
(£0.5m)
1%
NHSLA other activities
Income
Expenditure
Sign up to Safety
£1.3m
£7.5m
-
£1.5m
£6.4m
£18.7m
£0.2
(£1.1m)
-
Staff numbers
230
227
(3)
Cost of new claims provisions
New claims provisions
£3,701m
£29,332m
£25,631m
693%
£28,610m
£56,440m
£27,831m
97%
27%
43%
16%
6%
15%
14%
12%
15%
1%
Total provisions at year end
Total provisions
3
NHS Litigation Authority Annual report and accounts 2015/16 Summary
Figure 1: The number of new clinical and non-clinical claims reported in each financial year
from 2010/11 to 2015/16.
14,000
11,945
12,000
11,497
10,965
Number of new claims
10,129
10,000
9,143
8,655
8,000
6,000
4,346
4,618
4,632
4,802
2010/11
2011/12
2012/13
2013/14
4,806
4,172
4,000
2,000
0
2014/15
2015/16
Notification year
Clinical
Non-clinical
The number of new clinical and non-clinical claims has fallen in 2015/16 when compared
to the previous financial year.
Figure 2: The number of clinical negligence cases received by damages range for each
financial year from 2012/13 to 2015/16.
3,000
Number of claims
2,500
2,000
1,500
1,000
500
0
Nil
£1 - £10,000 £10,001 £25,000
£25,001 £50,000
£50,001 £100,000
£100,001 - £250,001 - £1,000,001 - £2,000,001+
£250,000 £1,000,000 £2,000,000
Estimated damages
2012/13
2013/14
2014/15
2015/16
The greatest number of clinical negligence claims received in 2015/16 were from
the damages range of £25,001 to £50,000 – continuing a three-year trend.
4
NHS Litigation Authority Annual report and accounts 2015/16 Summary
Figure 3: Defence and claimant costs as a percentage of damages by damages range for the
financial year from 2013/14 to 2015/16.
Costs as a percentage of damages
350%
324%
300%
250%
200%
176%
135%
150%
99%
100%
72%
48%
50%
43%
0%
£1 - £10,000
16%
27%
20%
£10,001 £25,000
£25,001 £50,000
£50,001 £100,000
38%
13%
10%
7%
£100,001 £250,000
£250,001 £500,000
£500,001 £1,000,000
18%
4%
£1,000,000+
Damages by tranche
% Defence costs of damages 13/14
% Claimant costs of damages 13/14
% Defence costs of damages 14/15
% Claimant costs of damages 14/15
% Defence costs of damages 15/16
% Claimant costs of damages 15/16
Claimant legal costs as a percentage of damages paid have risen in the past year and
continue to be disproportionate as they are markedly greater than defence costs.
Figure 4: A comparison of the number and total value of claims for maternity cerebral
palsy/brain damage claims over time.
300
247
255
989.7
Number of claims
219
199
181
200
229
223
220
196
874.6
179
688.5
150
486.4
100
522.7
652.8
656.8
800
206
733.8
1,000
885.6
188
685.5
600
522.5
400
354.1
50
0
200
12
/11
/13
/15
/14
/16
/10
/07
/05
/09
/08
/06
11/
12
10
13
15
14
09
07
06
05
04
08
20
20
20
20
20
20
20
20
20
20
20
20
Notification year
Number of claims
0
Total claim value (£m)
The value of maternity cerebral palsy/brain damage claims notified has continued to
increase whilst claims numbers have remained fairly constant.
Total claims (£m)
250
1,200
5
NHS Litigation Authority Annual report and accounts 2015/16 Summary
Figure 5: Expenditure on non-clinical claims by financial year from 2009/10 to 2015/16.1
60.0
48.1
50.0
46.9
Expenditure (£m)
42.4
44.6
40.2
41.2
3.7
3.8
2.8
3.6
2012/13
2013/14
2014/15
2015/16
40.0
34.0
30.0
20.0
10.0
6.4
5.5
4.3
0.0
2009/10
2010/11
2011/12
Financial year
Liablities to Third Parties Scheme
Property Expenses Scheme
Expenditure on non-clinical claims has remained relatively stable with an increase in
2015/16 to £44.6 million, but not back up to 2011/12 levels’.
Figure 6: Expenditure on clinical claims by financial year from 2009/10 to 2015/16.2
1,600.0
1,378.2
1,400.0
Expenditure (£m)
1,200.0
1,095.3
1,117.7
1,051.2
1,044.4
1,000.0
800.0
729.1
651.0
600.0
400.0
200.0
136.0
134.3
182.0
141.2
35.1
27.7
27.7
2013/14
2014/15
2015/16
0.0
2009/10
2010/11
2011/12
2012/13
Financial year
Clinical Negligence Scheme for Trusts
Existing Liabilities Scheme/Ex-Regional Health Authorities Scheme
Expenditure on clinical claims increased sharply, reflecting the increasing numbers and
costs of claims notified in previous years falling for settlement.
1 Figure 5 excludes £11.1m of expenditure incurred in 2015/16 on claims which transferred to the DH on 1 April 2013 as a result of the
restructure of the NHS.
2 Figure 6 excludes £82.5m of expenditure incurred on claims which transferred to DH on 1 April 2013 as a result of the restructure
of the NHS.
NHS Litigation Authority Annual report and accounts 2015/16 Summary
Clinical negligence experience
Millions
Figure 7: Clinical negligence expenditure including interim payments 2014/15 and 2015/16.
£1,600
Total = £1,488.5m
£120.1m
(8%)
£1,400
£1,200
Total = £1,169.5m
£103.2m
(9%)
£1,000
£418.0m
(28%)
£291.9m
(25%)
£800
£600
£774.4m
(66%)
£400
£950.4m
(64%)
£200
£0
2014/15
2015/16
Damages paid to claimants
Claimant legal costs
Defence legal costs
Non-clinical negligence experience
Millions
Figure 8: Non-clinical negligence expenditure including interim payments 2014/15 and
2015/16.
£70
Total = £59.4m
£60
Total = £53.5m
£6.7m
(12%)
£50
£40
£20.7m
(39%)
£7.7m
(13%)
£25.0m
(42%)
£30
£20
£26.1m
(49%)
£10
£26.7m
(45%)
£0
2014/15
Damages paid to claimants
2015/16
Claimant legal costs
Defence legal costs
6
7
NHS Litigation Authority Annual report and accounts 2015/16 Summary
Figure 12: The number of clinical negligence claims received in 2015/16 by specialty.
14%
■ Orthopaedic Surgery
■ Casualty / A & E
■ Obstetrics
33%
12%
■ General Surgery
■ Gynaecology
Total number of claims 10,965
■ General Medicine
■ Radiology
10%
■ Urology
■ Gastroenterology
2%
3%
■ Paediatrics
3%
3%
9%
5%
■ Other (aggregated specialties)
6%
The greatest number of claims received in 2015/16 was from the specialty area of
‘orthopaedic surgery’, continuing a year-on-year trend.
Figure 13: The value of clinical negligence claims received in 2015/16 by specialty.
■ Obstetrics
20%
■ Casualty / A & E
■ Paediatrics
■ Orthopaedic Surgery
2%
2%
2%
42%
Total value of claims received
£2,896,367,802
3%
■ General Surgery
■ Neurosurgery
■ Gynaecology
3%
■ Radiology
3%
■ General Medicine
■ Neurology
7%
8%
8%
■ Other (aggregated specialties)
The highest value of claims received in 2015/16 was from the specialty area of
‘obstetrics’, continuing a year-on-year trend.
(These two figures are reproduced from page 29 of the NHS LA’s annual report and account 2015/16
and retain the original figure numbers for consistency.)
NHS Litigation Authority Annual report and accounts 2015/16 Summary
Fewer than 1%
of the claims we resolved went to court.
28
Non-clinical 96
Clinical
Of those that went to court
60%
were successfully defended.
Wherever possible we resolve claims without
litigation. In 2015/16 fewer than 1% of the
claims we resolved went to trial. The cases that
we do take to court are where we believe the
case is without merit, or where greater legal
clarity about an area of case law is needed
or where we are seeking a change in the law.
We increased the number of cases taken to
trial overall by 45% from 85 to 124, whilst
maintaining a high success rate at 60%.
We have also worked with our Members to
reduce future claims through:
Working to reduce future claims
through safety and learning
• facilitating the bulk-buying of maternity
equipment, aided by the NHS Supply Chain.
The key to reducing the growing costs of claims
is learning from what goes wrong and
supporting those who deliver care to make the
changes necessary to prevent harm in the first
place. As part of this ambition, and in line with
our strategic aim for the year to support the NHS
to reduce harm through effective incentivisation,
the NHS LA distributed £18.7 million of incentive
payments to the NHS on behalf of the DH to
support the Sign up to Safety campaign. The
scheme targeted NHS organisations who could
demonstrate that they could use the funding to
provide improvements in patient safety. This led
to an increased focus in three areas of safety:
maternity, A&E (missed fractures) and human
factors/safety culture. Our website details the
improvement plans provided by the trusts which
received funding.
We have started the process of aligning our
regionally focused NCAS adviser team with our
Safety and Learning Leads and claims function
to provide a more integrated service to trusts.
• thematic reviews of claims data;
• networking events to share the outcome
of bid activities;
• setting up ‘buddying’ arrangements between
beacon organisations and those struggling
with specific patient safety issues;
• promoting ‘ask and offer’ work to share
learning and resources between trusts; and
It has been a busy year for our NCAS team as
we advised on 173 cases involving exclusion,
suspension or restriction from practice and
have enhanced the service we offer to NHS
organisations on the monitoring of exclusions
and suspensions.
We launched a web-check service in October
2015 for Healthcare Professional Alert Notices
(HPANs) which brings together pre-employment
checks for Performance List Regulations (PLRs)
and HPANs for all NHS users – this helps NHS
employers to check that the staff they employ
are not known to pose a risk to patients or staff
8
9
NHS Litigation Authority Annual report and accounts 2015/16 Summary
of harm from inadequate or unsafe clinical
practice, inappropriate behaviour or because
their conduct compromises the effective
functions of a team or local primary care service.
We have, and continue to, develop new services
and products such as mediation, for NCAS to
respond to emerging needs, and reviewed the
contracts and Service Level Agreements with
Northern Ireland and Wales, operating on a
revenue generation basis.
Member scorecards
During the year we developed and distributed
clinical and non-clinical claims scorecards to
Members. These are interactive tools to enable
Members to analyse their claims data at a
detailed level. Through this we have seen
increased evidence of engagement by clinicians
and on wards.
Claims scorecards provide a useful improvement
tool. Medical directors, directors of nursing and
quality, and front line staff can raise awareness,
learn from and reduce harmful events and gain
a greater understanding of the value and volume
of claims through these scorecards. Trust Boards
are supported to use the scorecards alongside
data on complaints and incidents to help improve
safety and drive quality improvements.
Sharing data, combatting fraud
We have improved our organisational
transparency by sharing data with other bodies
seeking to improve patient safety. We have
improved our information technology and joined
the Claims and Underwriting Exchange database
to share information to help reduce the risk of
fraudulent claims against the NHS and other
Government organisations. We continue to
support the NHS in being open with patients
who have suffered harm, promoting our
guidance on ‘Saying Sorry’ and by providing
practical support to trusts, via our legal panel,
in delivering the statutory duty of candour.
Managing the costs of litigation
The NHS LA has identified opportunities to
improve the claims process and deliver access to
justice at a more reasonable cost. We developed
and implemented a bespoke IT interface with the
employers’ and public liability claims portal to
increase the benefit of the fixed costs regime
applied to the claims in this area. This has
contributed to our ability to hold contributions
for our non-clinical schemes steady in 2016/17.
This year saw us develop an in-house litigation
team to further reduce the cost of outsourcing
litigated cases to external solicitors.
NHS Litigation Authority Annual report and accounts 2015/16 Summary
10
Number of appeals FHSAU
received in accordance with
the Pharmacy Regulations
283
in 2015/16
265
in 2014/15
In the past year we also piloted a new mediation
service. Focusing specifically on fatal and elderly
care claims, the pilot sought to determine how
we can increase the take up of mediation by
claimants and their legal advisers in all claims.
The pilot was evaluated positively and in the
coming year will extend and expand the service
as a result. We hope that this will increase the
number of disputes resolved without going to
court. In a sample of 47 cases where mediation
was completed, 81% were settled without
the need for a potentially costly and upsetting
court case.
Managing pharmaceutical appeals
The FHSAU provides an impartial tribunal service
to deal with appeals resulting from decisions
made by NHS England in most primary care
matters. Such matters include the appropriate
provision of community pharmacy services to
patients and the management of contractual
services provided by general practitioners (GPs),
dentists and opticians which includes appropriate
payment for those services. In order to dispense
medicines on behalf of the NHS, applicants
make a request to NHS England to join the
Pharmaceutical list. Any appeals against the
decision of NHS England can be brought to
FHSAU to resolve. For those already included
in the pharmaceutical list they can bring
appeals to the FHSAU following decisions
by NHS England in matters such as changing
the address registered on the pharmaceutical list,
changing opening hours or if they have been
found in breach by NHS England of their terms
of service. For GPs, dentists and opticians they
can bring disputes to the FHSAU to resolve
and examples of such disputes range from
disagreements over contractual payments,
alleged breaches of their terms of service and
terminations of contract. The FHSAU received
283 appeals in accordance with the Pharmacy
Regulations compared to 265 in the last financial
year. Much of the work of the FHSAU is around
interpreting and sharing knowledge and
understanding about how the various regulations
relating to primary care services to patients are
implemented.
Patient focus
We have further developed our patient focus
by including both a designated Non-executive
Director and an Executive Member of the Board
(the Chief Executive) to lead on this issue whilst
identifying this as a whole Board and
organisation responsibility. We have implemented
changes to ensure an increased patient focus in
everything we do with a revised Board agenda
and papers to ensure that the broader patient
interest is taken into account in our governance
and decision-making.
151 Buckingham Palace Road
London SW1W 9SZ
Telephone 020 7811 2700
Fax 020 7821 0029
DX 6611000
Victoria 91 SW
1 Trevelyan Square
Boar Lane
Leeds LS1 6AE
Telephone 0113 866 5500
Fax 020 7821 0029
www.nhsla.nhs.uk
This summary is based on pages 10 to 18 and page 29 from the NHS Litigation Authority’s full annual report
and accounts for 2015/16. The full version of this document can be found at
www.nhsla.nhs.uk/AboutUs/Pages/AnnualReport.aspx
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