General practice in England and Wales stands on the brink of a new era. For years GPs have looked on as hospital doctors have had their clinical negligence cover provided at no personal cost, while spiralling awards inflation has seen GP expenses rocket.
On Monday, 1st April 2019, two years of discussion, negotiation and hard work will culminate in the launch of the governments in England and Wales implementing schemes offering GPs the equivalent cover that our hospital colleagues have enjoyed for a generation.
It was the BMA, with support from RCGP, that pushed for a state-backed scheme when other less long-term indemnity solutions were still on the table, so this day will mark the achievement of joint working by the leaders of a united profession.
It marks a new phase in general practice, as we are released from the burden, anxiety and uncertainty of rising indemnity costs that brought us close to professional collapse. Gone will be the trepidation at the receipt of the annual indemnity renewal letter, and for a small section of our ranks the spectre of being refused membership of an indemnity organisation at all has disappeared.
But any transition brings its own challenges, and the complex world of clinical negligence cover, professional representation, existing liabilities, Ogden rate implications, run-off protection and contractual complexity has presented enormous challenges both operationally and in terms of communications.
On the eve of the launch of the Clinical Negligence Scheme for GPs (CNSGP) it is worth digging into some of this complexity in order to explain and hopefully help the profession to understand what is changing and what the average GP will continue to require as we move into this new future together.
While the narrative below is designed to offer a clear overview of the scheme in England, there is some brief information on the current status of indemnity in the devolved nations.
The rules for the scheme in England can be accessed here. They mirror the scheme that has been in operation for hospital doctors for years and we envisage that the GP scheme will work in a similar way. In fact both schemes, CNSGP and CNST (Clinical Negligence Scheme for Trusts), will both be operated by NHS Resolution (NHSR).
Detailed questions about the scope of CNSGP and whether cover will extend to any given circumstance can be directed to [email protected]
'Standard' NHS general practice
Notwithstanding that general practice is rarely “standard”, the bedrock of the scheme that we have negotiated is that everyone working in general practice will automatically be covered for any liability relating to an act or omission connected to the diagnosis, care or treatment of a patient in relation to NHS services that results in personal loss or injury to that patient. There are no payment, subscription, formal membership or registration requirements and the cover provided by the state continues whether or not the individual remains in post.
The “standard” offering is defined as including GMS/PMS/APMS practices, all GPs and clinical staff, all practice employees, locums, self-employed workers and trainees.
The definition of NHS services does not stop at those strictly commissioned by NHS England, either. Services delivered by practices under local authority and public health enhanced service contracts are also covered.
The full description of the scope of CNSGP and what is covered is contained in this document, and I would advise people to digest it and understand the scope of the cover they will now receive.
Out of hours
All care delivered by NHS out of hours providers will be covered under CNSGP. This will cover all staff working in these settings and is on the same basis as the scheme for those working in standard general practice.
Prison and Ministry of Defence (MoD) work
GPs working in prisons under APMS contracts will be covered under CNSGP. Work on behalf of the Ministry of Defence, however, will not be covered. Any GPs considering doing MoD work are urged to contact the commissioner of their service to ensure that they have cover through the MoD or organise private cover through a Medical Defence Organisation (MDO).
It is vital that GPs understand that CNSGP will provide cover only for litigation by patients. It will not provide other forms of help traditionally offered by MDOs, such as representation at GMC hearings, inquests or in criminal cases. This type of representation will still need to be purchased separately, and we would urge practices and GPs to continue to ensure they have cover for such circumstances. Professional representation cover is now being offered by all of the established MDOs and there are likely to be other entrants into the market offering this kind of product. It is likely that the market will become quite competitive and it is vitally important that GPs understand what cover they require and they may wish to shop around for this.
Appraisers are not covered under CNSGP but the terms of the standard appraiser contract mean that they have separate liability cover provided by NHSE for their appraiser work.
An area of concern that has generated enormous queries has been that of run-off cover. In order to understand this it is important to recognise what indemnity cover you have been receiving. Most MDO indemnity products have been “occurrence based”. This means that if you have paid for occurrence based cover for the year of (say) 2016 then that MDO will provide you with support and ultimately, if needed, settle a claim for any event that took place in 2016 regardless of when the claim is made (which could be many years later). There are other products, however, that are usually called “claims based”. A claims based product pays only for a claim that comes in during the year the indemnity is bought. So claims based cover for the year of 2016 would settle only those cases brought in 2016. This form of cover is usually cheaper, but it leaves the doctor exposed after the end of the indemnity year. To insure against a claim for something which happened in 2016 but where the claim comes later the doctor must purchase what is known as run-off cover.
The need for run-off cover was generally an insignificant problem which affected only those doctors who found their cover through insurance companies that generally offered only claims based products. All of the MDOs offered occurrence based products until the autumn of 2017. In the wake of Jeremy Hunt’s announcement regarding the intention to launch a state backed scheme two MDOs introduced claims based products. MDDUS offered its members the option of a claims based product which was significantly cheaper, and estimates are that a very small number of their members took this option. The MDU, however, offered its members only a claims based product which it has called the Transitional Benefits product. This had the effect of reducing the cost of indemnity for members moving to claims based policies.
The Department of Health and Social Care (DHSC) made it clear from the outset that it was not minded to take on the financial risk of providing what would effectively be state-funded run-off cover for anyone on a claims based product. Whilst discussions between DHSC and MDOs continue, we understand that this remains their position, and so it is imperative that all GPs who have been on a claims based policy ensure they have full run-off cover. There are various options for arranging this and we would advise all GPs in this situation to discuss their options with their MDO.
All GP trainees placed in GP settings for training purposes will automatically be covered by CNSGP for clinical negligence liabilities. Following further lobbying by GPC and its trainee representatives, comprehensive personal indemnity cover for all GP trainees will be funded by HEE until qualification. Further details, and FAQs, are available here.
Most GPs cannot avoid doing a small amount of private work. This is accrued through doing private medical reports, HGV medicals, firearms reports etc. This work will not be covered by CNSGP and it is important that GPs have separate private cover for this. All of the MDOs are offering occurrence based cover for these areas of work starting from 1st April. It is vital that GPs ensure that they are covered for these pieces of work, although it is envisaged that the average earnings from these services is very small and the risk relatively low.
Some MDOs may split their professional representation product from their private cover product while others may offer a single price for both. The important fact is that all GPs must ensure they have cover for both.
It is not the place of the BMA to recommend or promote any particular MDO or product and it is important to say that there are alternative offers available to all GPs. It has, however, come to our attention that there has been significant confusion experienced by GPs over the pricing structure of one MDO and it is our responsibility to inform the profession of the result of clarifications and assurances received in relation to that.
The structure offered by the MPS falls into 2 categories: Professional Protection (GMC representation, complaints advice etc) and Claims Protection (cover for private work). Under Professional Protection the website asks if you do any of a list of higher risk activities and the answer in many cases will be yes. This will add about £150 per year to the Professional Protection premium. However, when it comes to Claims Protection the question is subtly different and asks if you require MPS indemnity for any of the higher risk activities. Given that CNSGP covers these as long as they are delivered for the NHS the answer in most cases should be no. This seems counter-intuitive to many and answering yes to this question has the effect of producing premiums often over £2,000. This question should be answered in the affirmative only if those higher-risk activities will be carried out privately.
We have raised this issue with MPS who have acknowledged that the process could and should have been made clearer from the outset. They are making changes to avoid any further confusion and will be communicating with members to clarify the situation. We continue to work with all the MDOs to try and ensure as smooth a transition as possible.
For most GPs the levels of private earning per doctor spread across all doctors in a practice will be under £2,500 per year and the price range for both professional representation and private cover combined should be under £1,000 per year regardless of the MDO you join. It is only where GPs are doing significant amounts of private work requiring private indemnity outside of the CNSGP that costs should be significant.
Welsh Government has decided to introduce a scheme that largely mirrors the arrangements in England, but with certain distinct differences. The details of this will be forthcoming very soon and I would urge you to read the GPC Wales and Welsh Government communications on the same. Any questions on the scheme can be directed to [email protected] or [email protected]
Northern Ireland and Scotland
Northern Ireland has no elected administration and has not been in a position to agree to the kind of structure for indemnity that has been negotiated in England or Wales. The BMA remains seriously concerned at this and the potential for distortion of the Northern Ireland workforce that might occur as a result of the differential that could be created. We continue to press for a Northern Ireland solution to the indemnity challenge.
The position in Scotland remains unchanged with both the profession and Scottish Government comfortable in not establishing a parallel to CNSGP. That position will be kept under review.