The NHS Litigation Authority has confirmed that whilst nationally procured NHS contracts, such as Independent Treatment Centres, are covered under CNST via the referring PCT, this is not the case for all waiting list initiatives. Local initiatives are not specifically covered under CNST, and the terms of each individual contract dictate where liabilities fall.
The Private Practice Committee and wider profession are anxious that with the absence of clarity and continuity of cover for waiting list initiatives, some patients are being treated without sufficient cover. These concerns have been raised at ministerial level and it has been highlighted that the Association strongly feels that all NHS patients, irrespective of where they are treated, should be covered by the same CNST indemnity and that such unilateral cover would prevent inadequate cover of any claims that may arise.
We have received ministerial assurance that a review of the current guidance and regulations governing the work covered by CNST is underway and has acknowledged that the current guidance does not accurately reflect recent changes in diversity of provision. The review will reflect proposed changes in legislation that, when Parliamentary time allows and subject to Parliamentary approval, will enable the Secretary of State to extend the CNST scheme to cover all providers of NHS services.
It is also anticipated that with the advent of wider ranging centrally procured contracts, the level of local commissioning will be much reduced. PPC is seeking further clarification from the Minister on the reasons why locally procured schemes are not covered by CNST, whilst nationally procured schemes are.
For the time being, therefore, in locally contracted arrangements, NHS indemnity is not currently available and medical practitioners treating patients not covered by CNST are advised to arrange appropriate clinical negligence cover independently. We have received assurance from the Medical Defence Organisations that MDO members, who are insured for their private practice, will be covered by their indemnity arrangements if treating NHS patients who are not NHS indemnified.
The MPS has confirmed:
'In a situation where NHS indemnity does not apply, members may apply to MPS for assistance in respect of clinical negligence claims, assuming that they were in the correct membership grade at the time of the incident giving rise to the claim'.
The MDU has confirmed:
'Where a case does not attract NHS indemnity then members need simply to ensure that any earnings attributable to that case are included in the level of non-indemnified income that they declare to the MDU and which forms the basis for the subscription rate set. Such cases will then be regarded, by the MDU, as distinct from any other 'private' cases undertaken by that member during the membership year'.
The MDDUS has confirmed:
'Consultants will be covered by their indemnity arrangements, provided that they have given the medical defence organisation information as to the work involved and the level of fees. There should not be any difficulty with indemnity cover, given that the individual members liaise closely with ourselves'.
This is an issue of particular concern for private doctors choosing to undertake additional work being offered by private hospitals through new channels, including managed PMI, self-pay PMI and NHS-funded work through Choose and Book. We will continue to monitor and report any progress in this area.
NHS medical indemnity (PDF)