6 March 2006
If you have suffered an injury which you believe was another person’s fault, and you wish to bring a claim for compensation, one of the first issues your solicitor usually needs to consider is whether the Defendant to your claim will be able to pay the compensation you are awarded if you win. Usually, this means ensuring that the proposed Defendant has insurance that covers your claim for compensation and your costs.
Usual position in clinical negligence cases
If your claim arises from medical treatment you received from a doctor or hospital as a patient, then up until now, whether or not the prospective Defendant can afford to pay, your compensation has not been an issue of concern, as either you should benefit from NHS indemnity or the doctor will be insured.
If you receive treatment from your GP or a private doctor then any claim will be made against the individual doctor who treated you. All doctors are obliged to have insurance against such claims. In thse circumstances the insurance company will pay any compensation and costs you are awarded. If you receive treatment from a NHS hospital then the NHS Trust responsible for that hospital is the appropriate Defendant, and in England all Trusts are part of the NHS indemnity scheme.
National Health indemnity scheme
The NHS indemnity scheme is administered by the National Health Service Litigation Authority (NHSLA). NHS Trusts can become members of the scheme to help spread the risk of claims being brought against them. The NHSLA sets the levels of each member’s contribution, sets risk management standards and handles claims made against the members of the scheme.
If negligence is alleged against a member of the NHS indemnity scheme the NHSLA pays the legal and administrative costs of defending or settling the claim and, if the patient is successful in proving negligence, pays the compensation due to the patient and the legal costs that patient has incurred in pursuing the claim. As all Trusts are members of the scheme a patient bringing a claim against the NHS need not worry where the compensation and costs awarded to him/her are going to come from.
However, with the advent of the government’s initiative to shorten waiting lists and introduce ‘patient choice’ by contracting out certain services to the private sector, i.e. privately owned clinics, the position is not so straightforward.
The NHS plan of July 2000 provided that by 2005 no patient should wait more than 3 months for an out- patient appointment and no more than 6 months for in-patient treatment (also to be reduced to 3 months by 2008). To meet these targets the government agreed to contract out certain non-emergency services, such as MRI scanning or elective procedures, such as cataract surgery and knee operations, to the private sector.
Independent Sector Treatment Centres
Independent Sector Treatment Centres (ISTCs) were set up to provide elective surgical procedures for a range of conditions. The idea is that patients are referred to these centres by the NHS, usually their GP, so bypassing NHS hospitals.
As the treatment centres and clinics patients are referred to are privately funded and not NHS bodies they cannot, by law, become members of the NHS indemnity scheme, leaving open the question of who will pay if treatment carried out at a private centre goes wrong.
In the case of designated ISTCs the Department of Health and the NHSLA have come to a verbal agreement that, although the ISTCs cannot join the NHS Indemnity scheme, they can indirectly benefit from the scheme. Providing the Department of Health and the NHSLA stick to this agreement then any NHS patient treated at a designated Independent Sector Treatment Centre has the same rights and protection in respect of clinical negligence claims as a patient treated in an NHS hospital. However, this arrangement is only verbal and cause for concern is not just limited to the fact that the agreement between the Department of Health and the NHSLA has not been confirmed in law.
Which centres are ‘designated’
The significant word above is ’designated’. Only certain private treatment centres are designated ISTCs. There are other independent sector initiatives where the NHS has contracted out services to private companies, such as MRI scanning. These private companies will not necessarily be ISTCs. Indeed, there are only 20 ISTCs in the country at the moment. All other treatment provided to NHS patients by private sector companies does not automatically carry with it any indemnity protection.
The question as to whether the NHS will provide cover and pay out if anything goes wrong is likely to depend on the terms of the contract between the NHS and the individual private company. More often that not it is likely that the contracts will provide that the private company is liable for any claims arising from the service/treatment it provides. For the patient this means that before starting a claim it will be necessary to investigate if anyone can pay. This will involve considering the terms of the contract, which your solicitor will need to obtain from the NHS or the private company, and if those terms provide that the company will pay out if something goes wrong checking that the company has insurance, that the terms of that insurance cover the type of claim you wish to bring and checking that the insurers are willing to provide cover in the individual circumstances.
In summary, whilst using the private sector may reduce waiting lists and introduce choice it leaves a patient injured as a result of negligence vulnerable to the possibility of not being compensated for avoidable injuries and expenses, which they would have been compensated for if the treatment was being provided directly by the NHS.
For further information please contact Nicola Wainwright
in our clinical negligence department on 0207 650 1200.
Information was correct at time of publishing. See terms and conditions for further details.