At a glance: your top 5 tipsIndemnity for claims arising from treating NHS patients receiving NHS care through private providers may not lie with the state.Contracts are important.Ensure you have clarity on your indemnity arrangements prior to engaging in any work.Make sure you’re fully protected.It is essential to have appropriate protection.
We all know we need protection for clinical negligence claims when seeing private patients. And we tend to think that when seeing NHS patients, state-backed indemnity provides the necessary protection in the event of a claim being raised. But the NHS is always evolving, and sometimes private providers are commissioned to provide NHS services to NHS patients, and this can complicate things. It may all look like the NHS but clinicians working under these arrangements may have an alternative indemnifier for claims, provided by the private provider, or may be required to arrange their own indemnity for claims. It is important to check the arrangements.
What about the extra work you may be engaged in through waiting list initiatives (WLIs)? As the NHS ramps up its COVID-19 recovery plan and WLIs run in earnest, who is responsible for providing indemnity in the event of a claim? The WLI work may be ran out of an NHS hospital or the independent sector. The setting may not seem relevant. You are head down, doing the work.
Usually state-backed indemnity would provide protection against claims arising from treating WLI NHS patients. The provider commissioned to undertake the WLI NHS work can enter into an arrangement for protection for claims from the relevant state-backed clinical negligence scheme. However, there are a myriad of WLI arrangements across the UK home nations. Sometimes the provider does not obtain state-backed indemnity and then, importantly, clinicians may be required to obtain their own indemnity for seeing WLI patients.
Doctors should check the indemnity arrangements in their contracts. “Contract?” you ask. “What contract?” How many jobs have you been in where you have had a formal contract outlining all the necessary working arrangements including indemnity arrangements? For every job, every aspect of your work – substantive, temporary, locum, WLI work – get a contract and get in writing who will protect you in the event of a claim. Make sure you are clear on whether or not you need to arrange your own protection for claims. And don’t forget to keep those contracts, because you may need to revert to them many years from now.
As a consultant working in private practice, it’s important to protect your career. What sets us apart is the range of benefits that can assist and protect you throughout your career.
Sorting out or confirming the indemnity arrangements in place may be the last thing on your mind when setting up a job, shift or some extra work. But it is important to know where you stand before you start. The GMC requires all clinicians to have the relevant indemnity or insurance in place to protect the full scope of their work and practice, regardless of who they are seeing and in what setting.[i]
It is also worth bearing in mind that state-backed indemnity protects against NHS clinical negligence claims – it does not provide assistance with matters such as complaints, disciplinaries, regulatory investigations, inquests and criminal investigations. These can be challenging to manage and costly to defend. Let your medical defence organisation know about the entirety of your work where you might need to draw on their help including how many hours, sessions, and extra bits and pieces you do such as WLI work – even if you have confirmation that there is state-backed protection against any claims should they arise.
It is essential to have appropriate protection, for example, membership with a medical defence organisation, so you can request assistance with medicolegal matters not included in state-backed schemes.
Key points Indemnity enables you to request assistance in the event that a claim is brought against you. Be clear on your indemnity arrangements for all aspects of your practice. Ensure you have full details of what your indemnity arrangements include in writing, in any contracts. Keep your contracts so you can refer to them in the future. Check the indemnity arrangements before you engage in the work. Consider whether you have adequate support for all medicolegal matters for the entirety of your work – not just claims. The state-backed schemes only provide protection against claims.
Mr Y undertook regular work in his local private hospital for private patients and had the requisite protection for claims through his medical defence organisation (MDO). He was then asked by his local NHS Trust to undertake some WLI work for NHS patients at the same private hospital. Given these were NHS patients who he would normally have seen at his local NHS Trust, he thought that seeing them would be under the same arrangements as his standard NHS consultant contract.
Unfortunately, Mr Y received a claim arising from an operation he had undertaken on one of the WLI NHS patients. He approached the legal team at his local NHS Trust who advised him that he needed to have had in place his own protection for claims arising from treating NHS WLI patients. They said the contract they had with the independent sector at the time did not set out that claims relating to this cohort of patients would come under the Clinical Negligence Scheme for Trusts (CNST).
Mr Y approached his MDO but they were unable to assist as his indemnity arrangements only protected against claims relating to his private patients. He had to seek independent legal advice in order to manage the claim and had to fund it himself.
In 2015 it became a statutory requirement for all doctors practising in the UK to have appropriate and adequate indemnity. Read more in this article.
[i] Insurance, indemnity and medico-legal support - information for doctors on the register - GMC (gmc-uk.org)
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