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June 2007

Clinical Negligence Articles

Referral to Private Clinics from the NHS waiting list – Who is to blame if it goes wrong?

In England and Wales, there has been a number of initiatives engaged to tackle the increasing problem of waiting lists on the NHS. In England, the current target is that no patient should wait longer than 6 months from GP referral to treatment (or initial outpatient appointment) although the Government’s target is to improve this to no more than 18 weeks by 2008.

One of the initiatives, and perhaps also the most controversial, is to refer a number of NHS patients each year whom are waiting for surgery to a private hospital or clinic for treatment largely by foreign doctors. This is designed to speed up the process and allow patient choice as to where and when they have their operative treatment. However, this has not been without its critics. One particular problem is that of liability for Clinical Negligence claims. When such a referral is made, who is to blame if the surgery goes wrong? Does the patient bring a claim against the NHS Trust, the individual doctor or the private company that has employed him or her?

We at Thompsons have experience of dealing with such claims, and are finding that a number of patients have had difficulties with treatment provided by foreign doctors and wish to seek advice on what to do next.

In 2003, the Government launched the first wave of specialist diagnostic and treatment centres (otherwise referred to as Independent Sector Treatment Centres or ISTC’s). Companies had to bid for the right to run these centres, and to enter into contracts with the NHS to provide essentially non-urgent treatment, such as orthopaedic or ophthalmic surgery, to reduce the NHS waiting list. Seven private companies won, two being British and the remaining five from Canada, United States and South Africa. These centres operate up and down the UK, providing health care services to NHS patients such as arthroscopies, carpal tunnel syndrome decompression, total knee and hip replacements and termination of pregnancies.

However, it became clear that a problem arose as to where responsibility would lie, should a patient receive negligent treatment and wished to pursue a claim for compensation, where they had received that treatment from a foreign doctor under the employment of a private company which had entered into a contract with the NHS.

The NHS Litigation Authority (NHSLA) administers the clinical negligence scheme for NHS Trusts and provides indemnity cover for all NHS Bodies in England. So, if you receive treatment whilst under the NHS and this is found to be of a standard below that of a reasonably competent medical practitioner (negligent) then the NHSLA will deal with the claim on behalf of the Trust, and pay the compensation to the injured person.

Since July 2004, it has been agreed between the Department of Health and the NHSLA that special arrangements should be made to allow the providers of treatment through the private clinics to benefit from the NHSLA indemnity enjoyed by the NHS Trust that made the referral. Therefore, this prevents the NHS from shirking their responsibility by referring to a private clinic and avoiding liability from a claim which arises subsequently. More importantly for our clients, it means that there is the certainty and financial peace of mind from knowing that a claim can still be pursued against the private company in charge of providing care at the clinic, but that the NHSLA, a Government backed body, will investigate and indemnify the claim. This prevents the unfair scenario whereby a person may be injured by the negligence of a foreign doctor, and judgment be obtained but cannot be enforced, and compensation never obtained because the individual doctor has possibly returned abroad or where the company has become insolvent.

This scenario will cover the vast majority of situations where a referral has been made, but there will be situations where the NHSLA will not provide indemnity and in such a circumstance, we would need to examine the contractual relationship between the referring NHS Trust and the private company. It is highly likely that in those circumstances, commercial clinical negligence indemnity insurance would be in place, to cover the cost of payments of compensation and legal costs.

Here at Thompsons, we have a dedicated Clinical Negligence Team, ready to deal with any enquires that you may have in relation to medical treatment you feel went wrong, or not as expected, and if you have been treated by a foreign doctor under the waiting list initiative and wish to seek to make a claim for compensation we are ready and willing to help.