Recommendation F93: NHS Litigation Authority Improvement of risk management
From Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry, published 6 February 2013.
Recommendation
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 deficiences in risk management, such as occurred at the Trust.
In brief (written by this site)
The Department of Health and Social Care and NHS England reported in February 2026, in commentary from September 2024, that NHS Resolution adopts guidance on staffing and activity levels in higher risk areas through its Maternity Incentive Scheme, though it noted that this scheme does not extend beyond maternity and perinatal care (DHSC and NHS England, Feb 2026). In May 2024, the Thirlwall Inquiry legal team observed that the recommendation had been accepted only in principle, with risk management standards discontinued in April 2014 and the government maintaining that introducing staffing requirements was a matter for trusts rather than the litigation authority (The Thirlwall Inquiry legal team, May 2024).
AI-generated summary of the record on this page, checked by a second model and automatic checks, 26 Sep 2026. The record below is the sources' own words.
Government response
Accepted in principle.
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 focused 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.
How this response relates to the recommendation
Site note: This is volume two of "Hard Truths: The Journey to Putting Patients First" (Cm 8777-II), the government's response to the Inquiry's 290 recommendations, published by the Department of Health on GOV.UK on 19 November 2013 and dated to that day here. The PDF the row links to is the accessible edition, whose title page reads "January 2014". The Department of Health has been the Department of Health and Social Care since January 2018. The volume says it includes accounts from each of the national organisations the recommendations name, but it does not mark which passage each organisation wrote, so every row is filed under the Department that published it.
Blanket government agreement does not establish acceptance or delivery by each addressee. Some response passages cover groups of recommendations.
Scope of the government response
Government responded via "Hard Truths: The Journey to Putting Patients First" (2014), a single document covering all 290 recommendations with a blanket acceptance. Individual recommendation responses were not broken out.
Delivery
DHSC and NHS England state no delivery position (27 February 2026)
The Thirlwall Inquiry has noted action taken in response to this recommendation following the conclusion of the Inquiry.
The NHS Litigation Authority, now NHS Resolution (NHSR), adopts guidance from organisations, where relevant, on staffing and activity levels in higher risk areas. For example, as part of its requirements for Trusts to meet the relevant workforce safety actions as part of its Maternity Incentive Scheme, NHSR will consider input from the Anaesthesia Clinical Services Accreditation and the British Association of Perinatal Medicine. This scheme does not extend beyond maternity and perinatal care. NHSR also takes into account more general staffing guidance produced by NHS England in its risk assessment.
Safe Staffing
Evidence-based decision-making on safe and effective staffing is a requirement for all NHS organisations.
The National Quality Board sets out expectations for nursing and midwifery staffing to help NHS provider boards make local decisions that will deliver high-quality care for patients within the available staffing resource.
The NHS Standard Contract requires that providers ensure that there are sufficient appropriately registered, qualified and experienced medical, nursing and other clinical and non-clinical Staff to deliver services, and have regard to applicable staffing guidance (GC5). Service Specifications may set out further requirements around staffing levels.
Please see our response to recommendation 187 for related detail on the NHS Long-Term workforce plan.
Site note: DHSC and NHS England's own account of progress, supplied to the Thirlwall Inquiry in September 2024 and printed in the Inquiry legal team's Review of Implementation of Recommendations from Previous Inquiries into Healthcare Issues (version dated April 2025, published 27 February 2026). It is not a finding of the Inquiry. Their reviewed extent of implementation reads “Superseded”. Table row: section 18.2 No. 93, PDF page 469-470.
Department of Health and Social Care says in progress (11 February 2015)
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.
Site note: This is the supporting annex published on 11 February 2015 with "Culture change in the NHS: applying the lessons of the Francis Inquiries" (Cm 9009), attached to the GOV.UK page as "Culture change in the NHS supporting annex". The annex has no title page; that title is GOV.UK's and the PDF's own. Its table has four columns (No., Recommendation, Hard Truths Government response, Progress update), and the row carries the Progress update cell. No column says which organisation wrote an update, so the row is filed under the Department of Health (now the Department of Health and Social Care), which published it.
Site note: The Inquiry addressed this recommendation to the NHS Litigation Authority (now NHS Resolution), not to the Department of Health. The annex gives this update in the Department's publication and does not say who wrote it, so the row is the Department's report of the progress made on it.
What other bodies have found
In their own words. These do not change the delivery statement above.
Thirlwall Inquiry legal team (15 May 2024)
This recommendation was accepted in principle by the Government.
In the January 2014 Hard Truths report, the Government said that the time was right to move away from assessment against risk management standards towards an outcome-focused approach. NHS Litigation Authority risk management standards were discontinued from April 2014 onwards. The Government said that the NHS Litigation Authority was not in a position to introduce requirements in relation to staffing levels, skill mix, or staff-patient ratios, which were instead a matter for trusts.
Nevertheless, the Government said the new pricing methodology implemented by the NHS Litigation Authority took into account staffing and activity levels across higher risk areas.
Site note: The Thirlwall Inquiry legal team's own notes on implementation, from its Review of Implementation of Recommendations from Previous Inquiries into Healthcare Issues (version of 15 May 2024). The review does not colour its Extent of Implementation cell for this recommendation green; it leaves the cell uncoloured where a recommendation was rejected, where evidence of implementation was insufficient, or where steps had been taken but implementation was not yet complete. Table row: section 16.2 No. 93, PDF page 435.
Source
Themes and tags
Who has spoken
- Department of Health and Social Care
Response, delivery statement - DHSC and NHS England
Delivery statement - Thirlwall Inquiry legal team
Finding