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Indemnity for the Liverpool Community Health Independent Investigation

Volume 727: debated on Thursday 9 February 2023

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 NHS England of an indemnity that is necessary in respect of an NHSE non-statutory independent investigation into patient safety incidents and deaths at the former Liverpool Community Health NHS Trust.

This investigation follows an independent review chaired by Dr Bill Kirkup CBE into widespread failings by Liverpool Community Health NHS Trust. The review report, published on 8 February 2018, found that there were significant failings in the trust from November 2010 to December 2014.

It is important that these failings are investigated and that lessons are learnt to improve services. In response to the serious patient safety incidents described in the report, the Secretary of State for Health and Social Care commissioned Dr Kirkup to conduct an independent investigation into patient safety incidents at the trust. The investigation’s terms of reference cover patient safety incidents that occurred in the same period as the initial independent review addressed—namely, November 2010 to December 2014. The investigation was originally intended to submit its report at the end of 2021, but a number of factors have come together to delay its work, including challenges related to information governance and electronic document management. We now expect the investigation to have reported by spring 2024 at the latest.

NHSE is able to obtain indemnity cover from NHS Resolution through the liabilities to third parties scheme—LTPS. The scheme applies to any liability that 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 NHS resolution indemnity will cover any sums—including any legal or other associated costs—that members of the investigation 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 investigation. The indemnity will apply to any work carried out in accordance with the investigation’s terms of reference from the commencement of the investigation to its completion in 2024. The indemnity will cover the contingent liability of any legal action up to and following the publication of the investigation report.

The liability of the scheme for any proceedings brought against the member by virtue of section 13 of the Data Protection Act 1998, or any subsequent updating or replacement legislation (the “data protection legislation”), 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 substantial fines that it is possible for the Information Commissioner’s Office to impose in the unlikely event of a data breach, NHSE considers it prudent for the £50,000 cover available under the NHS Resolution LTPS scheme to be “topped up” with a specific NHSE indemnity to £500,000. 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.