Recommendation 93

NHS Litigation Authority having regard to staffing levels

Accepted in principle
The NHS Litigation Authority should introduce requirements with regard to observance of the guidance to be produced in relation to staffing levels, and require trusts to have regard to evidence-based  guidance and benchmarks where these exist and to demonstrate that effective risk assessments take place when changes to the numbers or skills of staff are under consideration. It should also consider how more outcome based standards could be designed to enhance the prospect of exploring deficiencies in risk management, such as occurred at the Trust.

As in the response to recommendation 91, the NHS Litigation Authority will move away from assessments against a set of risk management standards to a new outcome focussed approach. The new approach which will support members to reduce claims by focussing on areas which cause significant harm and in working towards improving clinical outcomes. These changes will also seek to reduce bureaucracy and the burden on front line staff, and avoid duplication with other agencies,

The NHS Litigation Authority is not in a position to introduce requirements with regard to the observance of guidance in relation to staffing levels, or to require the assessment of appropriate skill mix, staffing level and staff patient ratios. It is for trusts (and where appropriate, regulators) to have regard to evidence based guidance and benchmarks and to undertake effective risk assessments when changes to numbers or skills of staff are under consideration.

However, the NHS Litigation Authority’s revised pricing methodology for setting member contributions for their indemnity cover takes account of staffing and activity levels. This mean that if all other factors are equal, organisations which have more staff to undertake activities with the same level of risk will pay less for their indemnity cover. It also ensures that organisations with fewer claims pay less for the indemnity cover, therefore rewarding safer organisations.


From April 2013 the pricing approach for the Clinical Negligence Schemes for Trusts was changed to take greater account of claims paid and those in the process of being resolved. It also takes into account staffing and activity levels across higher risk service areas. The pricing approach rewards organisations with fewer less costly claims and thereby financially incentivises organisations to reduce their claims and thereby reduce harm and improve patient and staff safety.