Amid growing pressure on the NHS, consultants are looking elsewhere for improved pay and working conditions. But for those entering private practice, it’s important to be aware of the possibility of suffering a medical negligence claim as they lose the NHS indemnity cover.
Discretionary indemnity cover, although a popular choice across the private sector, does not provide cover for all eventualities. Addressing this at the point of entry into the private sector can prevent financial setbacks further down the line.
NHS under pressure
Strains within the NHS in the aftermath of Covid-19, combined with significant staff shortages, have established a lengthy backlog for non-urgent care.
Figures for October 2022 show a record high of 7.21 million patients waiting for NHS treatment (opens a new window). For the first time on record, December 2022 also saw private hospitals overtake the NHS for hip and knee replacements (opens a new window).
This has consequences for patients: according to surveys conducted by the Office for National Statistics (ONS), 59% of people reported that waiting for NHS treatment had affected their well-being (opens a new window).
In the same survey, more than half (52%) of respondents reported it being difficult or very difficult to access GP services.
Consultants on the move
But patients aren’t the only ones suffering from the strain on the NHS. Consultants are also feeling the impact.
In October, the British Medical Association (BMA) warned that nearly half (44%) of 8,000 hospital consultants surveyed in England planned to leave or take a career break from the NHS during the next year. (opens a new window)
Pay is the driving factor behind this trend. The average NHS consultant has witnessed a 35% fall in real terms take-home pay since 2008/09 (opens a new window), a scenario exacerbated by the UK’s rapidly evolving cost-of-living crisis.
By contrast, consultants undertaking work on a private basis can expect to command a much higher fee. It was reported in December 2022 that some NHS trusts were paying doctors recruited via agencies as much as £5,200 for a single shift (opens a new window).
A desire for less strenuous work and greater flexibility has also encouraged consultants towards the private sector.
Private practice – not without risk
Despite the attraction of the private sector, there are several considerations incumbent upon consultants looking to or already operating their own practice.
Failure to take such considerations into account could leave consultants exposed should a claim be made against them.
1. Get contractual indemnity cover
NHS indemnity schemes, used to provide cover for consultants participating in NHS work, do not cover private work. Therefore, it is essential that consultants take out adequate and appropriate cover.
Currently, many private consultants opt for what’s known as ‘discretionary’ indemnity, provided through one of several medical defence organisations (MDOs).
However – as its name suggests – such cover is discretionary, meaning there is no guarantee it will pay out. Not only that, but MDOs don’t have to provide any detailed reasoning for their decision.
In these circumstances, a consultant’s only option is to pursue a Judicial Review – which can itself be a timely and costly process.
By contrast, ‘contractual’ cover is available (opens a new window) through a few specialist insurers. Here, cover is guaranteed within the terms of the policy, with details given as to exactly what is and isn’t covered.
Unlike MDOs, contractual indemnity insurers are also regulated, meaning that consultants can pursue any coverage disputes via a free and easy legal ombudsman service.
2. Conduct necessary financial and legal checks
Setting up a private practice carries a number of administrative, financial, and legal implications for consultants.
It is best practice to seek out specialist advice to ensure compliance with relevant regulation, such as regarding taxation and data protection, and the need to set out your terms of engagement.
Consultants must also put in place the appropriate protocols and systems to handle claims of malpractice.
Other considerations include completion of the relevant Disclosure and Barring Service (DBS) check applications and registrations with the Care Quality Commission (CQC), unless exempt.
3. Practice location considerations
Where to practice is another question that a consultant must consider.
Some may prefer to practice from home or dedicated consulting rooms, whereas others may choose to do so from either a private or NHS hospital.
If practicing in a private hospital, consultants should be aware of any of the likely higher costs, including fees surrounding the use of ancillary staff, furniture, or equipment.
Private consultants practicing in an NHS hospital, meanwhile, must ensure they have approval from the relevant hospital authorities. They should make sure that all work is completed outside of their NHS working hours and avoid using ancillary NHS staff to perform private work.
In all settings, consultants must uphold rigorous standards of health and safety for their staff and patients. Failure to do so, such as through the use of inadequate equipment, may leave doctors liable for any injuries sustained.
4. Telehealth and remote consultation
Increasingly, a growing number of consultants are opting for telemedicine and other virtual platforms to reach and engage with patients.
A consequence of the Covid-19 pandemic, such virtual platforms are also proving popular with patients due to the ease of access and versatility they provide relative to traditional in-person appointments. However, technical faults, loss of information, and difficulties communicating (opens a new window) can also pose challenges for consultants seeking to practice on a remote or virtual basis.
Consultants and all healthcare providers must ensure they follow telemedicine best practice, including verifying third-party technology suppliers, encrypting sensitive data, using secure logins, and ensuring staff are adequately trained to carry out the above tasks.
Cyber insurance can also be a useful tool for consultants seeking to protect themselves against the possibility of a cyber-attack or the loss of confidential patient data.
5. Other considerations
The above gives an indication of the key issues consultants must be aware of prior to setting up and during the operation of their private practice. However, other considerations remain.
In all cases, consultant fees should be agreed upon in writing prior to commencing treatment; failure to do so could lead to misunderstandings or the possibility that payment cannot be retrieved. In such scenarios, consultants may need to turn to the Small Claims Court or other means of debt collection.
Where private consultants continue to perform NHS work, they should also ensure that no conflict of interest arises with their main NHS employer.
For further information, please contact:
Charlotte Bark, Vice President, Healthcare
Lockton’s specialist healthcare insurance team, Practition, offers market-leading in-house medical negligence, regulatory and governance healthcare expertise, including contractual medical indemnity coverage.
Practition’s services are designed to educate and train clients to improve their risk profile, learn from past clinical errors or omissions and generally improve patient safety. Working alongside Bill Medical as a trusted partner, Practition is also able to provide services to resolve the hassle of billing, collections, and debt recovery.
To learn more about how Practition can help you, visit www.practition.com (opens a new window).