The NHS is changing the way in which it responds to negligence claims against GPs. From 1st April 2019, new claims against GPs and other providers of healthcare within GP surgeries will be handled and paid for by NHS Resolution, the same organisation that defends, resolves and pays for claims against hospital doctors and nurses in NHS Trusts. So, how will the new scheme affect doctors and their patients?
What is a GP?
GP stands for ‘General Practitioner’ – the local doctor who provides everyday medical advice and services to people who are registered with their practice or ‘GP surgery’. In the UK there are around 7,000 GP surgeries, with each surgery generally employing a mixture of permanent doctors (some of whom may be partners, others who are salaried) and locums who are employed on a temporary or flexible basis.
GPs now work in a wide range of different settings. They may be employed in a single practice or as part of a multi-site surgery, as part of a federation, or attached to hospitals. It is also possible for a GP to hold more than one NHS contract. Therefore, they can have additional positions outside of their main practice, such as in the armed forces, or in academic institutions.
Claims for medical negligence
It is estimated that in England there are over 300 million patient/GP consultations each year, leading NHS England to describe general practice as “the bedrock of the NHS”. Whilst patients are generally satisfied with the care provided by their GP, given the high numbers of patients that GPs see each year, it is not surprising to learn that the Medical Defence Union estimate that on average, a GP is sued once every 10 years in their professional career, or four times in their working life. Mistakes happen which can sometimes have serious consequences for the patient who is then entitled to claim compensation by bringing a claim.
What is indemnity cover?
Given the high probability of being sued at some point during their career, GPs need insurance in place to protect them. This ‘indemnity cover’ or insurance will cover their legal costs arising from a negligence claim and also any compensation due to the patient. Until recently, GP doctors have purchased this cover from various medical defence organisations, such as the Medical Protection Society (MPS) or the Medical Defence Union (MDU).
What is the Clinical Negligence Scheme for General Practice (CNSGP)?
A new government-backed scheme has now been introduced in England, known as the Clinical Negligence scheme for General Practice (CNSGP). It covers claims "arising from the care, diagnosis and treatment of a patient as part of the NHS in England following incidents which happen on or after 1 April 2019". Enrolment in the scheme is automatic and covers all GPs and staff providing primary medical services, including both salaried and locum GPs, nurses and other health professionals. The scheme is administered by NHS Resolution for the Department of Health and Social Care, in the same way that NHS Resolution handles claims against hospital doctors working in NHS trusts.
CNSGP currently applies only to claims for treatment from 1st April 2019, but the Department of Health and Social Care (DHSC) and the Medical Protection Society (MPS) are already discussing the terms of a possible similar scheme which would allow NHS Resolution to cover claims arising out of treatment which took place before 1st April 2019.
What level of cover does the CNSGP provide?
Under the new scheme, indemnity is unlimited (i.e. payments out are not capped). There is also no excess to be paid and, if the claim falls within the scheme, GPs will not be at risk of having to meet part of the claim themselves.
What does the CNSGP not cover?
As with the indemnity offered by the defence organisations, the cover will remain discretionary. This means that NHS Resolution will have discretion as to which cases they will pay out for, and which they will defend. So, if a GP wants to settle a claim but NHS Resolution wants to fight it (for example on principle to discourage other similar claims, or to test how the courts will interpret the law in similar circumstances), NHS Resolution may override the GPs wishes and insist that the claim is defended. Alternatively, a GP who wishes to defend their claim, may not be able to do so if NHS Resolution believes the case should be settled.
There are also other limits to the cover. For instance, CNSGP will not cover:
- Claims arising out of non-NHS work, e.g. private treatment;
- Complaints where there is no likelihood of a claim arising;
- General Medical Council (GMC) inquiries;
- Care Quality Commission (CQC) investigation;
- Representation at inquests;
- Disciplinary proceedings against GPs or other members of staff;
- A range of other legal issues.
GPs will have to keep up membership of a medical defence organisation to assist with these matters.
What are the advantages of the CNSGP scheme for GPs?
The main advantage to GPs is that it should save them time and money. They do not need to pay for this cover as it is automatic under their NHS contract. This will save them the increasingly high costs of annual idemnity cover subscriptions and the administrative work required to keep their claims cover in place. Future costs will now be paid for by NHS England and government. The Minister of State for Care has said that this will allow GPs to “focus on continuing to provide excellent care to patients, knowing they have comprehensive cover in place”.
Many GPs are disappointed that NHS Resolution will decide when a case should be settled or defended, as the new scheme will be discretionary. Some are concerned that they will not be able to protect their reputation if they are forced to admit liability for a mistake or settle (or may only be able to defend the claim at increased personal financial risk).
What are the advantages of the CNSGP scheme for the government?
By introducing this scheme, the government will be able to have more control and oversight of claims and the costs involved. They also hope to attract more doctors to the profession by providing automatic indemnity cover for GPs at greatly reduced cost.
What are the advantages of the CNSGP scheme for the patient?
The advantages to the patient are yet to be seen. However, at Boyes Turner we hope that from now on NHS Resolution will make the process of pursing a claim against a GP much smoother and settlements will be reached more quickly. For claims against GPs arising on or after 1st April 2019, it will no longer be necessary for us to track down the indemnity insurer and negotiations can potentially start sooner.
We are also hopeful that in cases of clear negligence where there are multiple GP defendants (for example, when the patient has seen different doctors within the GP surgery over a period of time, as is often the case), NHS Resolution will prioritise early resolution and settlement for the injured patient, with less time spent arguing over apportionment of blame between GP defendants, resulting in savings in time and costs.