Wednesday, 12 June 2019

The New Clinical Negligence Scheme for General Practice

One of the sources of litigation jeopardy for claimants is the separate status and representation of different providers within the National Health Service. Where it is alleged that a GP and an NHS Hospital Trust are both negligent, should the claimant sue both, risking losing against one and having to pay their costs, or one, risking losing against that defendant when they might have won against the other? If there is more than one defendant then there may well be more than one defence expert for each discipline required. The claimant's experts might find themselves outnumbered.

Suing more than one NHS provider has often also involved dealing with more than one solicitor. This increases the costs that might be generated if all defendants had the same  litigation funder and legal representative. 

GPs have usually belonged to a medical defence organisation (MDO) such as the Medical Defence Union or the Medical Protection Society. The MDO will usually indemnify the general practitioner and conduct their defence. Meanwhile NHS Resolution (NHSR) indemnifies hospital trusts and conducts their defences.

Now that may all change. The new Clinical Negligence Scheme for General Practice (CNSGP) has come into operation for all primary healthcare claims within the NHS where the actionable act or omission occurred on or after 1 April 2019.

CNSGP will provide a fully comprehensive indemnity for all claims within its scope. NHSR will operate the scheme for primary healthcare providers within the NHS in England. Details of the scheme can be found on the NHSR website

The scope of the scheme is set out here. It should be noted that there are some activities, such as Ministry of Defence commissioned provision, that are outside the scope.

The scheme covers all providers of NHS primary medical services including out of hours providers, GPs and others working for general practice who are carrying out activities in connection with the delivery of primary medical services – including locums, students and trainees, nurses, clinical pharmacists and other practice staff.

If negligence occurred before 1 April 2019 then it is not covered by the scheme even if the injury occurred and/or the claim was notified on or after that date. Where there is continuing negligence that straddles 1 April 2019 then the MDO will still be responsible for indemnifying practitioners for the negligence up to 1 April, and the scheme will be responsible for indemnifying them for the negligence on and after 1 April.

In a document addressed to NHS Trusts, in respect of who there is an existing Clinical Negligence Scheme for Trusts (CNST), NHSR says:

"One of the major benefits of the introduction of CNSGP is the opportunity for
gathering and sharing learning about the causes of general practice claims across
England. This provides an opportunity for shared learning across primary, secondary
and tertiary care across the whole of the NHS.
We will also be able to minimise the potential for conflict between GPs and trusts
who are co-defendants in clinical negligence claims. This will enable such claims to
be resolved more quickly and where compensation is due allow patients to receive
this without delay. "

NHSR has also produced a short guide for claimant lawyers in which it states:

"In addition, CNSGP will operate in tandem with existing private and state-backed
indemnity schemes, including the Clinical Negligence Scheme for Trusts (CNST) to
ensure a consistent approach is taken to handling claims with multiple issues and/or

I say that his "may" change the position in relation to litigation involving primary healthcare within the NHS, but the new scheme is getting off to a rocky start. The MDU has announced that it is taking the Department of Health and Social Care to court because of dissatisfaction that the scheme does not cover events prior to 1 April 2019. Unless all MDO's subscribe to the new scheme, it will fail to simplify litigation.

If it does become effective, this new scheme should streamline some aspects of litigation, but  it is not yet clear what practical consequences it will have for the litigation process. The following thoughts are not based on any firm guidance or changes to protocols that I have seen. 
  • Perhaps a single letter of claim is all that would be required, addressed to NHSR even if there is a potential claim against a GP, a Practice Nurse and a Trust.
  • There is no suggestion of changes to the law or procedure regarding legal personality and the joinder of defendants. So, unless there is an express concession to the contrary, a claimant would still have to sue Dr X, Nurse Y and the Z NHS Trust, even if the NHSR was standing behind all three.
  • If there are conflicts between Dr X and Nurse Y, for example, but there is a single indemnity scheme behind both, then would that conflict continue to be material to the litigation? If not, how would conflicts of evidence be resolved? Will a pragmatic view be taken that certain conflicts are not relevant if, however they are resolved, an NHS provider would still be liable?
  • The courts might be more willing to insist on joint instruction of experts for defendants who are backed by the same indemnity scheme or even by different indemnity schemes that are both operated by the same body, the NHSR.
  • There are still two indemnity schemes (for general practice, and for trusts) even though they are both operated by NHSR. Litigation may not therefore be conducted as though there were one common indemnification scheme. However, the NHSR's guidance does not suggest that it will be operating "ethical walls" or information barriers between the CNSGP and the CNST. Indeed it suggests that information will be shared. This might lead to an entirely collective approach to litigation amongst all NHS defendants to a claim.

I have sometimes wondered whether it would not save a lot of time, effort and money to allow claimants to sue "The NHS" rather than having to identify and join particular providers within the NHS. Whilst there may be many who would oppose it, perhaps this is a step towards that destination.