Paying the private sector to treat NHS patients raises issues of accountability, when things go wrong. John Holmes reports

One way in which additional resources may be brought to bear to speed up the treatment of patients, and reduce waiting lists, is for the NHS to fund treatment in the private sector. Government proposals to increase such involvement, expressed as a concordat for co-operative working in its NHS plan, brings with it a need for greater awareness of associated risks for the NHS.

As a general rule, if private treatment goes wrong, the private sector picks up the bill. Usually doctors will fall back on their medical defence organisations and private hospitals will have their insurers. So where is the risk to the NHS?

The case of M v Calderdale and Kirklees Health Authority from 1997 illustrates the problem.

1Here, it was accepted that a termination of pregnancy contracted out to a private hospital by the NHS had been carried out incompetently. An 'unwanted' baby was born and the mother wanted compensation for the associated additional expense.

Unusually, neither the surgeon who carried out the operation, nor the private hospital where it was carried out, were in a position to pay.

The doctor had no medical defence organisation and the private hospital was bankrupt.

Attention turned to the funding health authority, and the claimant made a number of novel allegations including the suggestion that the HA had been negligent in its choice of provider.

This was an unusual case, turning very much on its own peculiar facts. The judge relied heavily on the fact that the claimant never asked to be sent for private treatment, and that she had remained, in effect, under the HA's care.

The judge felt it would be wrong for her to be put in a different position to an NHS patient, and found the HA liable both in relation to its common law duty of care, and also in relation to a breach of statutory duty by its failure to bring about an effective provision of services.

2It also deserves some qualification. First, the facts were extreme - the HA had no idea about the contractor's insurance, had lost the contract and could not show any enquiries about competence. Also, importantly, this was a first instance judgement from a county court. It has not been tested on appeal, and some of the concepts accepted by the judge look questionable in the cold light of day.

However, the point being made in the case is a valid one: where patients are funded by the NHS to receive treatment in the private sector, the NHS may retain a risk against which it should guard itself.

Key issues here will revolve around the NHS being able to show that appropriate enquiries have been made about the selected contractor, and that an effective contractual indemnity has been obtained from them.

That indemnity should cover all claims, including claims for negligence or similar.

In a recent case involving another private termination, the HA's claim for indemnity against the private hospital was complicated by the fact that the indemnity clause had clearly been 'borrowed' from another contract.

If an appropriate form of wording is used, there is no reason why any funding authority should be dragged into proceedings.

Not only are such disputes avoidable, but they are unlikely to fall under any of the NHS Litigation Authority's schemes. There are other situations where litigation may follow interaction between the private sector and the NHS. In some cases patients may move between the two sectors.

If doctor D in an NHS clinic says patient P needs an operation, which D then does privately, who pays if the treatment is questioned? If a claim arises, then factual issues of potential liability and relative responsibility may need to be resolved. In this example the outcome may depend upon the delay between clinic and operation, whether there was a full review pre-surgery, and whether it is the performance of the operation or advice about it, which is at stake.

Where a private sector patient is moved to an NHS intensive care unit following complications, although substantial responsibility is likely to rest with the private sector, it is not uncommon for the trust to have to take a share of the claim.

Government proposals to find a way to re-charge the private sector for such admissions will not help if litigation of this kind follows.

REFERENCES

1 Lloyd's Law Reports Medical (1998) 157.

2 Section 1, NHS Act 1977.