Evidence submitted by Action against Medical
Accidents (AvMA) (ISTC 43)
1. Action against Medical Accidents (AvMA)
was originally established in 1982. It is the UK charity specialising
in advice and support for patients and their families affected
by medical accidents. Since its inception AvMA has provided advice
and support to over 100,000 people affected by medical accidents,
and succeeded in bringing about major changes to the way that
the legal system deals with clinical negligence cases and in moving
patient safety higher up the agenda. The legal reforms of Lord
Woolf in the clinical negligence field and the creation of agencies
such as the National Patient Safety Agency and the Healthcare
Commission have followed after years of campaigning by AvMA.
2. AvMA is proud of the key role it has
played in making clinical negligence a specialism within legal
practice. It continues to accredit solicitors for its specialist
panel (without membership of AvMA's or the Law Society Panel a
law firm is not entitled to a clinical negligence franchise) and
promotes good practice through comprehensive services to claimant
solicitors. AvMA's interest in the matter of ISTCs is two-fold:
first as an organisation campaigning for patient safety; second,
it relates to our concern to ensure justice (particularly redress)
following the aftermath of an adverse medical incident.
3. AvMA is increasingly concerned about
the indemnity arrangements that apply to private sector treatment
centres where services have been commissioned by the NHS to treat
NHS patients. We have already had examples provided to us by solicitor
members, of cases where confusion over where liability lies being
a significant problem. The government's controversial plans to
increase the role of the private sector gather apace with seemingly
little thought given to the protection of patients seeking redress
following an adverse event after treatment in such a centre. It
is important to emphasise here that although the committee seeks
to address the issues surrounding ISTCs in particular, the concerns
that we have regarding the NHS indemnity arrangements as they
apply to ISTCs also equally apply to private sector involvement
in NHS services generally. The range and mix of health services
delivered by companies and/or individuals (clinicians as well
as ancillary staff) involve complex contractual arrangements,
some of which have (for reasons we make apparent below) been insufficiently
thought through with potentially dramatic consequences for patients
seeking redress (particularly financial compensation) following
a medical accident.
PRINCIPLES
4. The Clinical Negligence Scheme for Trusts
(CNST) handles all clinical negligence claims against member NHS
bodies where the incident in question took place on or after 1.4.95
(or where the body joined the scheme if later). Although membership
of the scheme is voluntary, all NHS trusts (including currently
foundation trusts) and PCTs in England belong to the scheme. [8]NHS
bodies are legally liable for the negligent acts and omission
of their employees and should have arrangements for meeting this
liability.
5. Where these principles apply, NHS bodies
should accept full financial liability where negligent harm has
occurred. They should not seek to recover the costs either in
part or in full from the healthcare professional concerned. NHS
bodies may carry this risk entirely or spread it through membership
of the clinical negligence scheme of the Trusts (CNST).
6. The NHS is unable under the statutory
instrument which governs CNST to indemnify the private sector
direct.
7. In 2004, Sion Simon MP, a Trustee of
AvMA submitted two parliamentary questions for written answer
to the Secretary of State for Health. Hansard reports these Questions
and Answers on the 9 September 2004 and 20 October 2004 as follows:
20 October 2004, Questions for written answer
Mr Simon: To ask the Secretary of State for Health
whether the (a) NHS Litigation Authority and (b) the Primary Care
Trust which has made arrangements for out-of-hours general practitioner
cover will be liable in cases of clinical negligence where the
negligent treatment was provided by an out-of-hours service commissioned
by a Primary Care Trust. [1872371]
Mr Hutton: If an out-of hours service is commissioned
by a Primary Care Trust (PCT), the provider of the service will
be expected to obtain their own insurance cover. The National
Health Service Litigation Authority is not liable for claims as
it administers the clinical negligence scheme for trusts on behalf
of trusts, who retain the legal liability for clinical negligence
claims.
If the PCT provides out-of-hours services itself,
then any negligent act would be covered by the PCT.
9 September 2004, Questions for written answer
Mr Simon: To ask the Secretary of State for Health
whether the NHS Litigation Authority will be liable in cases of
clinical negligence where the negligent treatment was provided
by a private or foreign healthcare provider under contract for
the NHS. [187382]
Ms Rosie Winterton: The NHS Litigation Authority
administers the clinical negligence scheme for trusts (CNST) in
England. The CNST provides indemnity against claims for clinical
negligence for member organizations, which include National Health
Service Trusts and Primary Care Trusts (PCTs).
Indemnity for cases arising from clinical negligence
is as follows:
Before July 2004, indemnity for
clinical negligence for independent sector treatment centres (ISTCs)
was covered by commercial insurance arrangements. Subsequently,
on a progressive basis, indemnity is now provided through the
CNST cover provided to PCTs. The arrangements between ISTCs and
PCTs are covered in their contracts.
For patients referred to foreign
healthcare providers, indemnity for clinical negligence is usually
covered by the CNST arrangements of the referring PCT or NHS Trust.
For other private organizations
the liability depends upon the terms and conditions of the contract
between the PCT, NHS Trust and the private body concerned.
8. Last year we wrote to the NHSLA with
our concerns governing legal liability in relation to private
commissioning arrangements. We asked them to explicitly advise
us as to the position regarding NHS indemnity arrangements relating
to the private sector. The response from John Mead dated 29 December
2005 stated:
"|the position from our perspective is
as follows:
(1) Independent Sector Treatment Centres
We have agreed a special arrangement
with the Department of Health whereby cover for clinical negligence
suffered by NHS patients is afforded by CNST. We are unable under
the Statutory Instruments which govern the CNST to indemnify private
companies direct. However, the way in which cover is organised
is via the Primary Care Trust which refers the patient to the
ISTC. This arrangement will pick up most patients who are referred
to the private sector by the NHS.
(2) Other commissioning initiatives
These are governed by individual
contractual arrangements between the NHS and the private sector,
which usually states that liability for clinical negligence will
rest with the private company. You will appreciate that such arrangements
over-ride the common law position. I agree that this can lead
to the complications which you describe."
9. We met with John Mead of the NHSLA, on
24 January 2006 to seek clarification on a number of the points
addressed in his letter:
"SPECIAL ARRANGEMENT"
10. No regulation or statute governs the
indemnity position where the NHS contracts its services to another
private sector company. Therefore contrary to the statement that
"this arrangement [with ISTCs] will pick up most patients
who are referred to the private sector by the NHS—this is
not the case. There is no written agreement between the DOH and
the NHSLA. The "arrangement" that the NHSLA has reached
with the DOH consists of no more than a series of discussions
between the NHSLA and the Department of Health. This is clearly
unsatisfactory. Most NHS patients would be appalled to learn that
responsibility for what they thought was NHS treatment rests with
the private clinic to whom they were referred. AvMA has learned
from the bitter experience of patients being treated by private
doctors (including GPs who are independent contractors) how difficult
it can be to establish liability amongst the clinic and doctors.
We have experience of many cases where doctors do not have adequate
indemnity insurance or in some circumstances none at all.
INDEPENDENT SECTOR
TREATMENT CENTRES
11. Many patients will be surprised to learn
that when the NHSLA refers to ISTCs these need to be distinguished
from arrangements between the NHS with the private sector generally.
An ISTC is distinguished from a hospital, clinic or other treatment
centre by virtue of its having been accorded designated
ISTC status. Although 34 treatment centres were open by the end
of 2005, we were informed by Mr Mead that only approximately 20
in total have had CNST cover extended to them. These include some
mobile clinics, MRI scanner clinics, eye surgery units, amongst
others. These centres have been granted retrospective cover and
the NHSLA will now be on risk in respect of these designated centres
from the date from which they entered into a contractual arrangement
with the NHS provider.
OTHER COMMISSIONING
INITIATIVES
12. These initiatives will capture "waiting
list" initiatives whereby hospitals contract out services
to private providers and situations where GPs (independent contractors)
or PCTs refer NHS patients to private sector clinics (eg abortion
clinics).
13. In circumstances where a treatment centre
has not been formally integrated into the CNST, the NHSLA advice
is that claims ought to be made in the first instance against
the Primary Care Trust with responsibility for commissioning services
from these private sector centres. The NHSLA advise us that they
will consider such claims in the first instance and review the
contractual arrangements between the Primary Care Trust and the
private company. If the NHSLA repudiate liability then they will
disclose the contractual agreement between the Primary Care Trust
and the private clinic/company to the complainant. If a hospital
contracts out services to another private hospital/treatment centre,
the claim ought to be made against the acute Trust. However, the
NHSLA will always consider the contractual position. Unless the
ISTC is "designated," it is questionable whether CNST
will be extended.
ISSUES
14. There is now a danger of patients/claimants
falling through a "black hole" when it comes to obtaining
redress against those who may not be covered by CNST. Having now
spoken to John Mead, it is quite clear that despite his assurances
in his letter of 29 December, the arrangements that the NHSLA
has reached with the Department of Health will not "pick
up most patients who are referred to the private sector by the
NHS". On the contrary, he was specifically suggesting that
only those designated centres would be covered in the first instance
and while the NHSLA will look at other cases there is no guarantee
that they will take them on. On the contrary, he made it clear
that the liability would most likely fall with the private company
in most cases. This is a retrograde step taken by the Government.
We have long had concerns about difficulties in obtaining redress
against private doctors, clinics and GPs. These structural arrangements
only intensify these problems further.
15. We have grave concerns that Primary
Care Trusts, that are certainly not used to having claims made
against them [given that primary care in the main is delivered
by General Practitioners] are not geared up for responding to
these claims. They do not have the resources, capacity or knowledge
to deal with these claims. It appears that the information that
has been disseminated to Primary Care Trusts and other Trusts
has been minimal if any exists at all. We are not convinced that
Trusts are up to speed with regard to the complexity of these
contractual arrangements. Most Primary Care Trusts do not even
have Claims Managers let alone in-house legal teams.
16. We envisage problems arising with regard
to NHS indemnity in the following areas:
— Waiting list initiatives—in
situations where Trusts have an overwhelming objective to meet
their waiting list targets they are contracting out to the private
sector to undertake routine or not so routine operations, eg hip
replacements. John Mead gave us no assurances that in situations
where an acute Trust commissions additional resources in this
way from the private sector and where the NHS patient ends up
in a private hospital that the patient would be indemnified by
the NHS hospital under the CNST. On the contrary, John Mead advised
us that contractual arrangements would have to be looked at before
the NHSLA agreed to accept liability.
— Overseas treatment—As in the
well-publicised case of Yvonne Watts who was forced to have her
hip replacement surgery undertaken in France.
— GP referrals to abortion clinics.
Again, will the PCT be liable? Much depends upon the contract
between the PCT and the clinics to whom the GP refers. The NHSLA
will look at these cases on a piecemeal basis.
— What of the situation whereby a GP
refers a patient for a smear test to a woman's health clinic (a
designated ISTC) but the cytology is undertaken by another diagnostic
unit? In a situation where Cytology Limited go bankrupt, there
would appear to be no redress for the Claimant who is diagnosed
with advanced cervical cancer as a result of mis-reporting of
a smear.
— Many GPs, following the new GP contract,
contracted out of "out of hours" cover with the effect
that PCTs have taken on responsibility for providing "deputising"
services. In practice, PCTs have commissioned these services from
other providers. The Secretary of State's answer to the parliamentary
question of 20 October 2004 states that the private provider will
be responsible unless the PCT supplies the cover itself.
— With regard to "other commissioning
initiatives" although John Mead advised contractual arrangements
between the NHS and the private sector will override the common
law position, he did concede that if a Trust commissioned services
from a body whose consultants proved incompetent/insufficiently
qualified without adequate checks the Trust would most probably
be liable in negligence.
PATIENT SAFETY:
OVERSEAS DOCTORS
17. Foreign companies in the main were invited
and recruited to run the ISTCs, primarily because such companies
could import staff, thus reducing the risk of "hiving off"
NHS staff to these centres. The Royal College of Surgeons has
articulated its concerns about adequacy of training of overseas
surgeons particularly given the fact that surgeons do not need
to be on the specialist register even though they must be registered
with the GMC. We share concerns that have been expressed by health
professionals' regulators about the varying arrangements for education,
training, audit and fitness to practice procedures across European
Union states. Under European law doctors have a right to work
in any member state.
18. At the moment independent healthcare
providers are required to comply with the standards of the Healthcare
Commission (HC). The HC is currently consulting on bringing inspection
of private providers in line with the NHS. Therefore, the drive
to increase ISTCs is ahead of the regulation being in place to
ensure adequate standards.
19. AvMA has learned through the bitter
experience of patients being treated by private overseas doctors
who subsequently seek redress when treatment goes wrong of how
difficult it is to locate doctors or establish whether they have
adequate indemnity arrangements in place. Frequently insurance
cover is inadequate if not non-existent.
20. The Department of Health appears to
have taken these steps with little or no attention to patient
safety. The fragmented and complex nature of these arrangements
means that the advantage the NHSLA always had in identifying patient
safety issues, disseminating learning and feeding this into clinical
governance will be lost.
PATIENT AND
PUBLIC INVOLVEMENT
(PPI)
21. The private sector does not have a good
record on PPI.
22. Clarity needs to be forthcoming on how
complaints handling is to operate in circumstances where complications
arise or issues arise following treatment in an ISTC/private treatment
centre.
23. Patients need to be informed about nature
of treatment and after- care in private treatment centres. How
easy will it be for the patient to be remitted into the NHS following
a complication in a private centre rather than expecting the same
centre to resolve the issue itself?
SUMMARY
24. Many issues and concerns surround the subject
of ISTCs. Many problems are now becoming apparent since the inception
of ISTCs two years ago. We suspect that even more difficulties
will surface as time goes on. Many of our lawyer members are reporting
incidents where complications have arisen, particularly with patients
demonstrating co-morbidities. The troubling feature has been that
when something has gone wrong, no-one seems to accept the blame—each
party pointing the finger at another. No patient ought to be caught
in the web of the complex commissioning arrangements established
between the NHS, clinicians and private sector organizations.
We have sought to highlight the problems inherent in these arrangements.
Much anxiety regarding indemnity arrangements could be alleviated
by extending CNST to all companies contracting with the NHS. In
turn, the NHS can seek indemnities from the companies responsible—The
NHS will thus be in a position to audit performance and quality
and ensure safety and justice for patients always comes first.
Fiona Freedland
Legal Director
AvMA
13 February 2006
8 The above points are covered in more detail in
NHS indemnity arrangements for clinical negligence claims in the
NHS, issued under cover of HSG 96/48. Back
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