SJ Interview: Simon Hammond

What instigated the development of the new agreement?

The Covid-19 Clinical Negligence Claims Protocol that was introduced in 2020 was the forerunner to this new agreement and was groundbreaking in terms of its establishment. The new agreement takes the successful aspects of the protocol and builds on them, which includes certain revisions made by the signatories as needed.

The establishment of the Covid-19 Clinical Negligence Claims Protocol has not only helped reduce the volume of clinical negligence claims that go on to be litigated, but it has also helped to promote a cultural shift in the legal market. Through the collaborative approach being taken in terms of the agreement on clinical negligence claims, there is now a real desire of the parties to work together to help keep patients and healthcare professionals out of court proceedings.

Ultimately there is recognition that only by working together can improvements be made that benefit all the parties. This has involved working together in different and innovative ways to settle claims, alongside protecting the ability of healthcare staff to deliver care.

Does the new agreement incorporate the views and experiences of patients?

The agreement has been developed in collaboration with key stakeholders, including AvMa (Action against Medical Accidents), which is a UK charity for patient safety and justice, and the Society of Clinical Injury Lawyers. So, the voice and views of patients have been incorporated into the new agreement and the original protocol, with the key stakeholders helping to identify where challenges arise. For instance, we have listened and understand the patient’s need for an apology, particularly in instances where liability is proven.

How can the right balance be struck between fairness, patient safety and change/learning when it comes to clinical negligence claims?

A key aspect of getting the balance right in regard to clinical negligence claims is ensuring that claims are dealt with as swiftly as possible. But, essential to this balance, is recognition of the pressures faced by the health system, especially in terms of the situation post-pandemic and the workforce shortages. It must be recognised that the health system faces significant challenges and that this has to be balanced with the necessary investigations into harm caused, as well as the need to protect the ability of healthcare professionals to deliver care.

During the Covid-19 pandemic, the importance of being able to deliver care and treat patients was crucial. It was essential to give healthcare professionals the time to deliver care, alongside the progression of claims, where possible. The original protocol was established with that in mind, enabling claims to be pursued by claimants, but for that process not to be detrimental to the provision of care by healthcare professionals.

We always seek to try and help the healthcare system learn from claims and have a dedicated team focussed on that. We work with patient representative bodies to listen to how we can improve our services, such as our maternity voices advisory group.

Are there any measurable results from the implementation of the protocol?

The full impact of the protocol is difficult to quantify, but broadly it has enabled us to keep more cases out of formal legal proceedings. Despite the Covid-19 pandemic and the intervening period, if you look at the annual results, we have consistently increased the amount of settled clinical negligence claims kept out of formal proceedings, for the benefit of patients. And key to this increase is the wider collaboration between the parties involved and the innovative approaches to dispute resolution.

How is the learning as a result of clinical negligence claims relayed to patients?

We have the duty of candour with patients and that relates to all local NHS trusts. Our role at NHS Resolution is to help NHS trusts understand the claims portfolio better in order to target interventions and improve patient safety. This includes carrying out reviews and case studies, with the aim of helping the healthcare system learn from claims and incorporate this learning into best practice.

What more needs to be done in terms of NHS litigation reform?

Any reform is a matter of policy, but I would say that we have managed to work successfully within the current legal frameworks. We are investigating cases earlier and reaching decisions more swiftly, for the benefit of all involved.

How robust is the claims management division in terms of fraud prevention?

We work according to best practice and carry out detailed investigations when suspicions of fraud arise with the aim of protecting public funds. Particularly, we have cracked down on exaggerated clinical negligence claims and have secured contempt of court convictions in this regard. I would stress that genuine claimants have nothing to worry about. But it is important that such cases are pursued so that they act as a deterrent and the courts take such cases very seriously. Overall, there are only a few individual cases of fraud involving exaggerated claims. And we have not seen a dramatic shift in the behaviour of fraudsters, as this type of fraud is very specific.

How do you remove the adversarial nature of the claims management process?

The legal system in the UK is adversarial in nature. But how you go about changing the attitude to such claims is by creating a shared understanding and working together towards the end goal. This includes sharing evidence, for instance. And we have seen a cultural shift in this regard, instigated by the protocol and continued by the new agreement. Part of this process is recognising that the different parties might have different viewpoints on whether compensation is due or not, for example, but that coloration can still play a role and that where possible such claims do not need to go to court. Keeping patients and healthcare professionals out of the court process is key to lessen the detrimental impact of such claims and reduce anxiety.

What has been your biggest achievement to date during your tenure at NHS Resolution?

My biggest achievement has to be being involved in that cultural shift within claims management that we’ve witnessed as a result of the protocol and new agreement. And that achievement is the result of the whole team, not just by me. Second to that is the work to outline the expansion of the dispute resolution initiatives within NHS Resolution and our efforts to keep patients and staff out of formal legal proceedings.

What would you like to achieve in your role going forward?

It is an exciting time within claims management. There are opportunities to deliver technological innovation within the sector. For example, generative artificial intelligence has the potential to benefit claims management. We are currently part way through implementing a new case management system within NHS Resolution, which will improve processing efficiencies, improve our use of data and provide us with a technological platform for the future.

Our aim is to use this platform to deliver our services in a more cost-effective way, utilising the expert skills of our staff enabled by technology.

I believe that the industry is only just starting to scratch the surface of the potential application of new technologies, including natural language processing models and true AI applications. This comes with increasing confidence around the governance of such products, which is of paramount importance to us. The ability for systems to read unstructured data, provide true predictive analytics and be interoperable with these capabilities will transform the current claims management landscape, providing we can apply such technologies at the right time and in the right way.

Over the next five years I am looking forward to helping shape the future delivery of claims management for the NHS, providing our staff with the right technological support and applications to deliver the best service we can to our members and the wider public.