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Departmental Minute: Liability

Volume 710: debated on Tuesday 8 March 2022

It is normal practice, when a Government Department proposes to undertake a contingent liability in excess of £300,000 for which there is no specific statutory authority, for the Minister concerned to present a departmental minute to Parliament giving particulars of the liability created and explaining the circumstances; and to refrain from incurring the liability until 14 parliamentary sitting days after the issue of the minute, except in cases of special urgency.

I have today laid a departmental minute proposing the provision by the NHS Trust Development Authority (TDA), now part of NHS Improvement, of an indemnity that is necessary in respect of an NHS Improvement non-statutory independent review of maternity services at Shrewsbury and Telford Hospital NHS Trust. This review follows a number of serious clinical incidents, beginning with a newborn baby who sadly died in 2009; an incident which was not managed, investigated or acknowledged appropriately by the trust at the time. In subsequent years from 2009 until 2014 a number of further investigations and reviews (internal and external) were also undertaken to confirm whether appropriate investigations were conducted and the assurance processes relating to investigations in the maternity service were adequate. Following the original launch of the review, more families came forward with concerns about their care and this led to an extension to the scope of the original independent review.

The review published its first interim report on 10 December 2020. The report outlined the local actions for learning for the trust and immediate and essential actions for the trust and wider system that are required to be implemented now to improve safety in maternity services for the trust and across England. In response, NHS England and NHS Improvement committed to investing £95 million for workforce numbers, training and development programmes to support culture and leadership, and strengthening board assurance and surveillance to identify issues earlier.

The review’s second and final report is now planned to be published soon.

NHS Improvement are able to obtain indemnity cover from NHS Resolution through the liabilities to third parties scheme (LTPS). The scheme applies to any liability which a member of the scheme owes to any third party in respect of loss, damage or injury arising out of an act or omission in the course of the carrying out of any relevant function of that member which is a qualifying liability.

The indemnity will cover any sums (including any legal or other associated costs) that members of the review team are liable to pay in relation to legal action brought against them by a third party in respect of liabilities arising from any act done, or omission made, honestly and in good faith, when carrying out activities for the purposes of the review. The indemnity will apply to any work carried out from the commencement of the review to its completion in 2022, in accordance with the review terms of reference. The indemnity will cover the contingent liability of any legal action following the publication of the review report and for two years after that date.

The liability of the scheme for any proceedings brought against the member by virtue of Section 13 of the Data Protection Act 1998 for all compensation payable to any claimant or any number of claimants in respect of or arising out of any one event or series of events consequent on or attributable to one source or original cause shall not exceed £50,000. Further, the maximum sum payable for such cases in any one membership year shall not exceed £500,000. However, in view of the potentially substantial Information Commissioner Office (ICO) fines for data breach, it would be prudent for the £50,000 cover available under the NHS Resolution LTPS scheme to be “topped up” with a specific NHSI indemnity to £1 million. If the liability is called, provision for any payment will be sought through the normal supply procedure.

The Treasury has approved the proposal in principle. If, during the period of 14 parliamentary sitting days beginning on the date on which this minute was laid before Parliament, a Member signifies an objection by giving notice of a parliamentary question or by otherwise raising the matter in Parliament, final approval to proceed with incurring the liability will be withheld pending an examination of the objection.