Even before the Health and Social Care Act made it onto the statute book the concept of a single national health service caring for us all from the cradle to the grave had been seriously undermined. Healthcare may still be free at the point of delivery, just about, but the question of who actually delivered that care is not always an easy one to answer and it is causing an increasing number of headaches for solicitors representing those injured by lapses in medical care.

To give a few examples from our past caseload – several years ago I acted for a lady whose husband had sadly died of a heart attack leaving her with a young family to support. He had contacted an out of hours service the night before. He should have been told to go straight to hospital. Instead he was told to see his GP the following day and he died during the night. The Primary Care Trust who were at that time responsible for the delivery of GP services in the area had contracted out the out of hours service to a private company. Their insurers alleged that, although they were responsible for some parts of the service, at the relevant time the service was still being staffed by nurses employed by the local Care Trust. This was disputed by the Trust and frankly we never got to the bottom of it but the PCT had also been abolished and reorganised into three different trusts. No new Trust was prepared to take responsibility for the claim and I came to suspect that the issue of run off i.e. what to do about claims arising before reorganisation had been completely overlooked in the restructuring process. Suffice it to say that it took a threat to report the matter to the Secretary of State before the solicitors acting for the NHS finally agreed to nominate a body to deal with the claim.

More recently my colleague acted for a lady who had problems with her feet. Her GP referred her to a specialist under the ‘choose and book’ scheme and she was treated in a private hospital but as an NHS patient. This is a scheme which will be familiar to many people and is one which is popularly used to reduce waiting times. Unfortunately the treatment went wrong. Who do you bring proceedings against? The question is really one of which insurer is going to provide an indemnity. Surgeons are covered by the NHS scheme when they are working as an employee in an NHS trust hospital but not otherwise. Doctors also carry their own professional indemnity insurance for their private work but this lady was an NHS patient albeit in a private hospital. The parent company of the private hospital were not responsible and we eventually established that it was the Primary Care Trust who had entered into the arrangement with the private hospital to deliver NHS care who had the duty to indemnify. In situations like this we found that all the potential indemnifiers behaved like any other insurance company in any situation that is they were none too keen to disclose their contractual arrangements and very keen to pass the buck.

Primary Care Trusts have gone in the recent round of reorganisation. They have been replaced by Local Clinical Commissioning Groups led by GPs who have responsibility for commissioning the majority of health services. The new legislation opens the door to private health care firms to deliver services currently provided by the NHS. As our health service becomes increasingly fragmented and privatised in all but name, the question of who to sue when things go wrong is going to get more complex. It will no longer be safe to assume that the care provider is the NHS. Private providers are unlikely to be open about their insurance arrangements and tracing the indemnity is going to get more difficult. Indeed there is no guarantee that the provider will have adequate cover and no provision in the legislation whereby the NHSLA picks up any claim which is not met by the provider’s insurer.

The NHS Litigation Authority was set up to deal with claims arising in NHS hospitals and surely it is not beyond parliament to extend the scheme to cover NHS care however it was delivered. It is unjust to expect people who are already injured and let down by the health service to cope with the added stress of unravelling the chain of responsibility for delivering their treatment.

For further information contact Duncan Gardiner, Medical Negligence Partner at Morrish Solicitors on 033 3344 9613 or complete our contact us form.