Healthcare litigation expert Patricia Roe and primary care expert Justin Cumberlege explain the NHS Resolution indemnity scheme for GPs. Find out more about our primary care law services and contact the team: https://hpsns.co/practitionerspodcasts

Welcome to this podcast from Hempsons. Today we are going to be talking about CNSGP, which is the indemnity scheme, which is given for primary healthcare, mainly through the GMS, PMS, and APMS providers. I'm delighted that I've got Patricia Rowe here from our healthcare litigation team, who advises GPs when claims come in and it's able to give us a bit of this sort of background about how CNSGP is operated.

So my first question to you, Patricia, is who is operating this on behalf of the NHS?

Thanks, Justin, for that introduction. Yes, so it's being operated by NHS Resolution. NHS Resolution are an arm's length body of the Department of Health and Social Care, and they provide support to the NHS on resolving concerns and disputes fairly, learning for improvement, and preserving resources for patient care and GPs are now under the umbrella of NHS resolution for incidents occurring on or after the 1st of April 2019.

Great, and so, as a GP practice, what do you normally, what would you expect to do then when you receive that moment of receiving a claim from somebody, um, that heart stopping moment and you, um, perhaps panic and go to your notes and try to see what, you know, they're talking about and whether there's any justification in it. But what should you do when you receive a claim?

Well, I mean, the first thing to do is not to panic, because there's lots of people out there to support you, and NHS Resolution being the main one, and then the panel firms that NHS Resolution instructs to help. So Hempsons is one of those, and we've got a long standing relationship with NHS Resolution. The next thing to do is, if it is a potential claim to report it into NHS Resolution and that can be done via email and there are email addresses on NHS Resolution’s website, or it can be done by telephone and there's again a telephone number on the website, which is a 24 7 number, where you leave a message with a call service and receive a call back from a solicitor or other person that will have knowledge of these sorts of cases, so can explain how to report it in and will help you through that process.

Well, that's brilliant. So, does CNSGP actually cover everything?

Sadly not. It does cover all claims. It covers all claims that involved treatment that has been provided under the primary care contracts, and I'm sure that you can explain those in a bit more detail, but my understanding is that that's GMS, PMS, or the APMS contracts, or where schedule 2L of the NHS standard contract has been utilised, and involves care and treatment under those contracts. There are, though, as you have indicated, some exclusions, and matters that are not covered by CNSGP include complaints, GMC or other inquiries, inquests, disciplinary proceedings, private work, employers’ liability or public liability. So, it is important to maintain defence organisation cover in relation to those matters.

And also it won't cover you if you are doing anything with, even if the NHS has asked you to do it without a contract in place. So, NHSR do ask to see the contract. So it’s really important to resist the temptation of going ahead because somebody has said, yes, they want you to do the service. without having a contract in place, which actually commissions you to do it, even if they've promised to pay you and you, you're absolutely certain you're going to get paid. If there is a claim and you can't produce a contract, then you are at risk of not being covered. And particularly, this comes about where PCNs have set up their own service company, or sometimes GP federations agree to take on a service for the NHS, or the NHS has created an idea for a new service and then come to you and say, can you provide it? And you say yes, and you agree how much you're going to be paid to do it, and then forget perhaps, or aren't prepared, or NHS England are taking so long to produce a contract that you go ahead anyway. Well just be warned, you may not be covered by insurance. So, in other words, don't do it until your contract has been signed. There may be ancillary things that also that you've been asked to do. Just take us through what a claim involves, you know, when it comes in and the timeline and things like that.

A claimant has to prove three things in order to succeed in a claim. They have to prove duty of care. So that's generally not an issue in medical cases; there's a duty existing when patient is receiving treatment. There has to be a breach of that duty and that means that the doctor has to be shown to have done something that no other reasonable practitioner would have done. If it's not a doctor, then it's a professional acting in a similar capacity, so it can apply to practice nurses, pharmacists, physiotherapists in the same way. And then there also has to be causation. So, if there has been a breach of duty of care, then that has to have resulted in a poorer outcome to some extent.

The valuation of the claim is also relevant and that is looking at both general damages. So that is the figure that a patient would receive for the actual injury that has occurred and then the special damages, which are the financial losses that are relating to that injury. In terms of timeline, unfortunately, these cases do take an awful long time or can do. It can often, and NHS resolution indicate that it can often be three years, before even the claim is notified from the incident taking place. So, you might have moved on, completely forgotten about anything to do with the patient, and then a claim arrives, unfortunately.

Most claims are dealt with outside of the formal court process. In fact, 81 percent of claims that NHS resolution dealt with in the last financial year were resolved outside of that court process. And that's their strategy to try and keep both patients and healthcare staff out of court. Just because a claim is resolved does not necessarily mean that damages are paid, and it's about 50/50. So even if a claim is intimated, that doesn't necessarily mean that the claimant will recover damages. It was 52% of claims that were resolved in 23/24 resulted in payment of damages. And if it does end up in court proceedings, that small minority of cases that do, and then the timescales are different for each case. But once the court proceedings have been issued, it can be up to two years, possibly more before a trial date is fixed. But again, just because a trial date is fixed does not mean that there will be a trial and only 50 cases of all of the cases that NHS Resolution dealt with in 23/24 actually went to trial. So not just GP, but including the trust cases as well. So it's unusual to get to trial, but to get to the end, whatever that is, does take a long time.

Yeah. And I mean, I know the Daily Mail likes to pick up how much has been paid to lawyers to defend medical negligence claims. And has the government come forward with any proposals how to resolve these quickly and cheaply?

So there's lots of ideas always been on the table, whether or not those things actually do what they say on the tin. They’re looking at, they've just started a fixed cost scheme in clinical negligence cases, but only the relatively low value ones. There's nothing new in the pipeline that I'm aware of, but the health select committee have looked at costs on a number of occasions in the past. And with the new government, and it's quite possible that it's something that they might look at again in the future. Although I imagine it's quite far down the pecking order of priorities at the moment.

Thank you, Patricia. That's a great summary of what could occur if a claim comes in. But as you said, only a very few are likely to go to court. So, don't feel that's an inevitable result of when that claim comes in, however bad it seems when it first arrived, and contact NHSR. And they've got more information on their website, so that's probably the place to start off with, in fact.

Absolutely. And, you know, use the resources that are there to support you. That's what they're there for.

Good. Well, thank you for listening to this podcast. I hope it was helpful. If you want to contact us, please go to one of the contact forms on our website. The primary healthcare team in Hempsons covers the country, and we're here to help you. Thank you very much.