17 June 2019 | Comment | Article by Helen Neville
Much has been talked of the new clinical negligence scheme operating for claims against GP(s), but due to the work of Society of Clinical Injury Lawyers (SCIL), chaired by Stephen Webber, we have had the opportunity of discussing the scheme and how it is likely to work with John Mead, Technical Claims Director of NHS Resolution.
Special thanks are given to John Mead and NHS Resolution (NHSR) for attending the SCIL meeting and for taking the time to discuss the new scheme.
The Legislation and where to find it
The statutory instrument SI334, The National Health Service (Clinical Negligence Scheme for General Practice) Regulations 2019 can be found here.
The explanatory memorandum can be found here.
There is no end date on this statutory instrument. NHSR confirmed to SCIL that the Government will keep the scheme under review.
Online Explanatory notes and guides
NHS Resolution (‘NHSR’) devote a whole webpage to assist claimant lawyers with information about the new scheme and how it works. There is a Frequently Asked Questions Page which can be found here. Alternatively one can email any questions or issues to email@example.com.
Essence of the scheme
- It applies to negligence occurring on or after the 1 April 2019.
- It is advised that all GPs continue their membership with their medial defence union (e.g. MPS, MDU) to ensure they have cover for the things the NHSR cannot assist with.
- NHSR confirm the scheme covers all people working in a GP surgery under the NHS in England only (i.e. not Wales or Scotland). N.B this is contrary to the statement on the MDU website that the scheme covers England and Wales. However the scheme does not apply to NHS Wales but we understand there will be a similar scheme operating in Wales in due course).
- Examples are practice nurses, physiotherapists, in house pharmacists, locums, temps, receptionists (think Darnley!) It therefore does not matter if the alleged negligent person was a temp or a locum as they are all covered.
- It also covers all types of forms of primary medical care services such as individual GPs, the practice, the partnership, General Medical contracts, Primary Medical Services contracts, or Alternative Provider Medical Services contracts. The latter is usually found where there is an integrated urgent care package.
- It covers NHS primary medical healthcare in prisons and out-of-hours facilities.
- It does not cover private work, dentistry, MOD healthcare, high street pharmacies, public/employer liability, negligence prior to 1 April 2019, inquest representation or GMC/regulatory matters.
Indications from the NHSR
The NHSR at a recent SCIL members meeting confirmed they are encouraging claimant firms to name the GP practice as the Defendant on letters of claim. The NHSR would like to see a change in the Civil Procedure Rules and pre-action protocol to reflect this. This is because at present, there is no change to the law and procedure regarding the legal personality and so a claimant would still have to sue Dr X, the full partnership name or all the partners as individuals for example.
Cases involving GPs (or other specified persons under the GP Scheme such as physiotherapists etc.) and Hospital Trusts will be dealt with by their separate teams (which are CNSGP and CNST) but that they will collaborate and discuss the cases and share information. They will discuss matters with each other “behind the scenes” to reach an agreement on liability or to reach a settlement. This presumably will be a smoother process than at present whereby you are requesting one organisation to communicate with another, for example the MDU and/or MPS and/or the NHSR.
The communication between teams will enable NHSR to obtain collective data and publish and disseminate information on claims; assessing what went wrong and (it is hoped) enable shared learning across NHS care providers.
When asked whether this will mean the NHSR will only need to obtain one expert discipline to advise on matters of breach, causation or condition and prognosis, they envisage that in some cases this will be preferable and would keep costs and time down to a minimum. However, this decision will be made on a “case by case” basis.
NHSR confirm they have recruited people to deal with the new GP scheme and there is a specific team set up in London to deal with these cases.
Reassurance was given during the SCIL meeting that the scheme has the government backing (as with current non GP NHS cases) to cover Payment Protection Orders.
NHSR confirm if there are multiple negligence allegations spanning pre 1 April 2019 and post 1 April 2019 then you will need to direct a letter of claim to both NHSR and the appropriate medical defence organisation(s). The NHSR are not, at least currently, dealing with both.
The MPS have reported the scheme to its members but continue to campaign for fixed fees to apply to “low value” claims and for amendments to be made to the law of tort.
Meanwhile the MDU appear to be suing the Department of Health and Social Care for failing to propose and implement a scheme for the MDU GP members’ liabilities pre 1 April 2019. Their statement can be found here.
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