The NHS Resolution Clinical Negligence Indemnity Scheme for GPs
This article first appeared in the Autumn 2021 issue of AISMA Doctor Newsline, the newsletter of the Association of Independent Specialist Medical Accountants.
On 1 April 2019 NHS Resolution began operating a new state indemnity scheme for general practice. This article seeks to outline the Scheme including an overview of the claims process, what is covered and when to contact NHS Resolution to report in potential clinical negligence claims. It also explains the support that will be provided to you if you are named as Defendant in a claim.
Overview of the schemes
Historically, indemnity for clinical negligence claims was provided by defence organisations such as the MDDUS, MDU and MPS. From 1 April 2019 NHS Resolution began operating a state indemnity scheme for general practice called the Clinical Negligence Scheme for General Practice (CNSGP). The Scheme covers providers of NHS primary medical services and extends to GPs and others carrying out activities in connection with the delivery of primary medical services.
Whilst post 1 April 2019 claims will be covered by NHS Resolution, MDDUS and MPS have also transferred all their historical GP claims to NHS Resolution. These are dealt with under an Existing Liabilities Scheme for General Practice (ELSGP). The MDU continue to deal with any claims for this period themselves.
It is important to note that both Schemes only apply to any liability in tort (civil wrongdoing) that arises as a breach of duty, so it is imperative that MDO cover is maintained for any issues that fall outside of the Scheme.
Overview of a claim
In order to succeed with a clinical negligence claim, a Claimant must satisfy a three-part test:
- Establish a duty of care was owed
- Show there has been a breach of that duty
- Show an avoidable injury has been suffered (known as causation)
The first part of this test is clearly established in a patient/doctor relationship. In order to establish a breach of that duty, the Claimant must show the care provided fell below that which would be provided by a responsible clinician practising in that field of medicine. This is often referred to as the Bolam test.
In respect of causation, the Claimant must show that but for the breach of duty, they would not have suffered from the injury complained of. There are some variations to this test in certain circumstances.
In order for the parties to investigate a claim, expert reports are obtained from clinicians who practise in the relevant fields of medicine but who are independent from the parties in the case.
When to report in a claim
You should contact NHS Resolution to report a claim or potential claim:
- Upon receipt of a request for disclosure of medical records from a solicitor
- Upon receipt of a Letter of Claim – this is important as the Letter of Claim should be acknowledged within 14 days
- Upon service of Court proceedings – again this is important as certain documents need to be filed at the Court within 14 days
- If a complaint has been investigated and the proposed response makes admissions which would amount to an admission of breach or duty and/or causation.
- A notifiable patient safety incident which has or may have resulted in severe harm –
- A demand for compensation
- Any communication received from the Parliamentary Health Service Ombudsman
- Any intended offer of compensation or other redress.
- Group action – i.e. any adverse issue which has the potential to involve a number of patients.
The NHS Resolution helpline is available 24 hours on 0800 030 6798. They will be able to advise if the matter needs to be formally reported in at that stage or advise you on when to get back in touch. They will tell you what needs to be done to enable the claim to be reported. Alternatively, you can e-mail ELSGPnotifications@resolution.nhs.uk if your enquiry relates to a claim before 1 April 2019 and you were an MDDUS or MPS member at the time of the incident. For post 1 April 2019 it is email@example.com
The role of the panel firm
Once a claim has been reported to NHS Resolution, they often instruct a panel firm of solicitors to investigate. The solicitor instructed is now acting on your behalf (and possibly on behalf of some of your colleagues if the claim is pursued against more than one person). It is important to remember that, as well as investigating the claim, they are there to support you.
Panel firms are usually initially instructed to obtain expert reports to comment on whether breach of duty and causation are established meaning admissions should be made or whether the claim can be denied. NHS Resolution will advise you when a panel firm is being instructed and, following instructions, the panel firm will often seek comments from you or arrange a convenient time to speak to you. You should be open with the solicitor you speak to about what you can recall and ask any questions you have about the claims process.
Input required from a Defendant GP
The first time that you are likely to be asked for input is during the investigations which follow the Letter of Claim. This is usually the first formal step in the claim process and will set out a chronology of the facts and the allegations being pursued. You may be asked for your comments on both the chronology and the allegations themselves.
Without input from the people who actually treated the Claimant, the experts instructed will only have the content of the records upon which to base their opinion. Understanding a clinician’s usual practice and ensuring a correct interpretation of the records is vital to ensuring the experts have taken all relevant information into account.
Once the expert reports have been received and the Letter of Response has been drafted, if it contains any admissions it will need to be approved. If you have been named as a Defendant, you are usually asked to approve the admissions. If the allegations relate to something more systemic and the Practice has been named as the Defendant an agreed nominated individual will need to approve the admissions. This might be the Practice Manager or a Partner of the Practice. It is important to let the panel firm and/or NHS Resolution know who has the authority to approve any admissions.
If admissions have been approved in the Letter of Response, the panel firm or NHS Resolution will investigate the value of the claim. No further input will be required in this process, but you will be kept up to date.
If liability is denied but the Claimant proceeds with the claim, the next step is for Court proceedings to be issued and served on the Defendant. One of the documents is called the Particulars of Claim; this sets out a chronology of the facts and the allegations. This may be similar to the Letter of Claim or the allegations may have changed. In response, a Defence is served; this will need to be approved (and signed) by someone with appropriate authority even if liability is denied.
The solicitor will work with you to ensure all relevant documentation and material is identified – as well as patient records this will include any complaints correspondence or practice investigations. The next step is to exchange witness statements with the Claimant’s Solicitor. The comments you have previously provided will be put into a statement for you to review in detail before signing. We may also need to have a further conversation with you to ensure all points are covered.
If a case proceeds all the way through the Court process, the final step is a Trial. If you have given a witness statement, you will be called as a witness to give your evidence and to be asked further questions by the barristers representing each side. Beforehand you will be advised what to expect and what will be involved. If you have not given a witness statement but you have been the nominated point of contact, you may be asked to attend the Trial to observe and answer any last-minute questions.
We fully appreciate that being named as a Defendant in a claim can be an unpleasant experience. It may have been many years since you assessed the patient and going over the details can be distressing. Please be assured that both NHS Resolution and panel firms deal with these claims on a daily basis; they can and will guide you through every step of the process and provide the level of support that suits you.