Providing continuing care to people who already have been compensated to pay for private care is money PCTs may be pouring down the drain, warns Jill Mason

Continuing healthcare costs are rising year on year, so primary care trusts must be able to tell if they are spending too much on it. This requires trusts to properly regulate this expanding area and have effective controls in place.

Not all PCTs are aware that injured claimants can elect within the personal injury proceedings that their future care costs be provided privately

Given the impending financial freeze, PCTs must consider how to control budgets and ensure both equity and value for money for the NHS.

One area that PCTs could look at in order to potentially save money relates to patients who are in receipt of or are entitled to considerable damages awards. These patients will be seeking or will have obtained awards following road traffic accidents, accidents at work or clinical negligence claims, for example. The award will be made up of various parts and will include a sum for future health and social care costs incurred as a result of the accident. Should the long term medical and social care needs of such a person injured by another’s wrongdoing be met by the NHS or the wrongdoer?

Not all PCTs are aware that injured claimants can elect within the personal injury proceedings that their future care costs be provided privately as part of their claim against the wrongdoer. The 60 year old Law Reform (Miscellaneous Provisions) Act 1948 states: “In an action for damages for personal injuries… there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act.”

Therefore, a patient is not under a duty to try to reduce their loss by seeking NHS care. If an election is made then the NHS does not have a duty to conduct a continuing healthcare assessment.

If a patient has been awarded damages for future care costs and then the PCT provides such services, this would result in the patient being substantially over compensated.

Top Tips

  • If you are asked to provide a statement in personal injury proceedings that asks you to confirm what the PCT will provide to a patient, or that asks you to confirm that assessments will be made without taking into account personal injury damages, be alert to the fact that insurers will be wanting the PCT to confirm that you will provide continuing healthcare on an ongoing basis. Take the opportunity to show you are aware of the fact that a patient can elect for their future care to be provided privately.
  • If you are approached by a case manager to conduct an assessment, ensure the case is reviewed at a senior level within the PCT and consider refusing to do so. You will need legal advice on the factual scenario involved.
  • Review your continuing healthcare caseload for cases related to accidents. Obtain legal advice on these scenarios to determine if you can discontinue provision in order to shift expenditure on to the insurers.

Case Study

In Douglas v Beldray Ltd and Another, Mr Douglas was seeking damages after an accident at work. The local primary care trust refused to assess him for continuing healthcare despite requests by the solicitors for the defendant insurer. In light of this, the insurers tried to add in the PCT as a defendant to the injury proceedings. The court did not permit this. Instead, the court said: “It seems to me that this patient is not in need of such care as required by the 2007 directions… there was and will be no need for such care because it is being provided by and Mr Douglas expects it to be provided by and wants it to be provided by and it will be provided by a solvent insurer.”