Annex - Statement of Intent for NHS Indemnity
THE HEALTH AND SOCIAL CARE BILL
NHS Indemnity - Statement of Intent
Aim
506. The clause sets out to amend the primary
legislation that allows the Secretary of State for Health to create
schemes for meeting losses and liabilities amongst providers of
NHS healthcare. It is envisaged that the new powers will be used
specifically to open up membership of the Clinical Negligence
Scheme for Trusts (CNST) to non-NHS providers of NHS care.
Background
Legislation
507. Amongst other powers, the NHS Act 2006 makes
provision for the Secretary of State for Health to make regulations
(with the consent of the Treasury) that establish a scheme for
specified bodies to meet liabilities to third parties for loss,
damages or injury arising out of the carrying out of the functions
of those bodies. The schemes themselves are enacted through secondary
legislation.
508. A number of schemes have been established,
which cover clinical and non-clinical risks. These are all run
on behalf of the Secretary of State for Health by the National
Health Service Litigation Authority (the NHSLA); a Special Health
Authority. It is currently envisaged that the Government will
use this clause in the Health and Social Care Bill 2007 only in
relation to the Clinical Negligence Scheme for Trusts.
The Clinical Negligence Scheme for Trusts (CNST)
509. The CNST provides cover against incidents
of clinical negligence, and is analogous to a mutual insurance
fund. The scheme handles all clinical negligence claims against
member NHS bodies where the incident in question took place on
or after 1 April 1995 (or when the body joined the scheme, if
that is later). Membership of the scheme is voluntary although,
currently, all NHS trusts, NHS foundation trusts and primary care
trusts in England belong to it.
- The NHS (Clinical Negligence Scheme)
Regulations 1996 (as amended) list:
- the bodies that are eligible to participate in
the scheme,
- the liabilities to which the scheme applies,
and
- the rules for joining or leaving the CNST.
510. Currently, membership is restricted to the
following bodies:
- strategic health authorities
- primary care trusts
- NHS trusts
- special health authorities
- NHS foundation trusts
- The Commission for Healthcare Audit and Inspection
(the Healthcare Commission)
- The Health Protection Agency.
511. The funding arrangements and costs of the
scheme are met by membership contributions. Professional actuaries
assess the projected claim costs in advance each year. Contributions
are then calculated to meet the total forecast expenditure for
that year. Individual member contribution levels are influenced
by a range of factors, including the type of trust, the specialties
it provides and the number of clinical staff working in each specialty.
512. Having robust risk management procedures
in place can also lead to a discount on contributions. The NHSLA
sets standards against which a member is assessed. Attainment
of greater standards results in a larger discount on the contribution.
The CNST therefore provides incentives to improve internal risk
management process leading to greater patient safety and a reduction
in adverse incidents.
513. When a claim is made against a member of
CNST, the NHS body remains the legal defendant, although the NHSLA
takes over full responsibility for handling the claim and meeting
the associated costs.
Development of the NHS
514. The way in which NHS services are delivered
has changed considerably since the CNST scheme was established
in 1996, and is expected to continue to change over the next few
years. The independent and not-for-profit sectors are increasingly
providing services to NHS patients. These developments provide
extra capacity needed to deliver swift access to treatment for
NHS patients, support the implementation of patient choice, and
stimulate innovative models of service delivery and drive up productivity.
515. Amongst these new types of provider are
social enterprises. A social enterprise is a business with primarily
social objectives whose surpluses are reinvested for that purpose
in the business or in the community. Social enterprises and the
voluntary sector are seen as being able to make valuable contributions
in the long-standing challenge of addressing health inequalities.
Issues for CNST
516. The NHS and the Department of Health have
encountered difficulties in supporting this increasing diversity
of provision because of the limitations within the 2006 Act. The
Government's intention is that the CNST should be available to
all providers that deliver the types of care currently covered
by the scheme. This will continue broadly to exclude primary care
provided by independent contractors - primary medical services,
primary dental services, general ophthalmic services, pharmaceutical
services and local pharmaceutical services.
Proposals
Approach to primary legislation
517. 3.1 The 2006 Act allows the Secretary
of State for Health to set out the detailed rules governing the
operation of the CNST in secondary legislation. Placing these
rules in secondary legislation allows the scheme to be more easily
amended in light of experience and ensures that there is the necessary
flexibility to adapt in order to reflect the way that NHS services
are delivered. It also avoids unnecessary constraints on the NHS,
and limits the technical and administrative detail that appears
in primary legislation. The clause in the Health and Social Care
Bill adopts a similar approach.
Increasing the scope for membership
518. Given the recent changes to the way in which
the NHS delivers its services, it is increasingly clear that the
primary legislation underpinning the CNST is no longer capable
of covering the full range of bodies providing NHS care. The Government
firmly believes that the clinical negligence scheme should be
extended to allow a wider membership.
519. Any such extension will be strictly limited
to services provided as part of NHS England. In instances where
a member of the CNST is operating in a private capacity, those
instances will not be covered by the scheme.
520. We therefore intend that the necessary regulations
will allow the following bodies to be eligible for membership
of the CNST:
a) all the bodies currently able to join the
scheme (see paragraph 2.5);
b) the Secretary of State;
c) any other body or person providing or securing
the provision of NHS services whose engagement with the health
service is the subject of arrangements with the one of the bodies
listed in (a) or (b). This will cover providers from the independent
and not-for-profit sectors.
521. Membership of the CNST will remain voluntary.
It will be for individual non-NHS providers of NHS care to look
across the market to ensure that they have an indemnity or insurance
policy to cover their NHS provision that satisfies their needs.
Primary Care
522. We do not intend to cover independent providers
of primary care services generally (primary medical services,
primary dental services, general ophthalmic services, pharmaceutical
services and local pharmaceutical services) at this time. These
services are generally not currently within CNST. There are satisfactory
alternative arrangements already in place for dealing with clinical
negligence liabilities in these areas.
523. However, primary care services can be delivered
in many ways, and we do not intend to exclude providers currently
able to benefit from CNST membership, such as services directly
provided by a PCT.
524. In drafting the subsequent regulations,
we remain committed to working with stakeholders to ensure that
any inclusion of primary care is clearly defined.
Department of Health
February 2008
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