Published: 22/04/2002, Volume II4, No. 5902 Page 25

Bob Ricketts replies to the law column by David Lock of Mills and Reeve in our 8 April issue on the treatment of NHS patients by private providers

Independent treatment centres are increasingly being used by trusts to complement their own capacity for elective surgery, and we will see many more opening their doors to patients in coming years.

As I travel around the NHS, speaking to commissioners, clinicians, and stakeholders, I am happy to provide reassurance about patients' and trusts' rights when treatment is commissioned from other providers.

NHS patients treated by the independent sector are contracted to receive treatment and care under an 'NHS badge' and will have the same rights as though they were treated in a trust. Claims made by a patient against the contracted ITC are effectively claims against the trust that referred the patient for treatment. If appropriate, it would then be for the trust to claim from the independent provider.

To this end, providers must have all necessary insurance in place, including cover for any clinical negligence claims; this is integral to the standard contract signed between ITC providers and the NHS.

When a doctor is employed on a contract for an independent company, this does not change the fact that trusts have a duty of care to their patients, whether treated in the trust itself or under contract in the independent sector.

But it is also important to put this issue of liability for clinical negligence into perspective. When bids to run treatment centres are evaluated by the Department of Health's procurement team, the bottom line is clinical quality: companies must be able to provide clinical audit trails for their staff. Each ITC is subject to a rigorous regime of performance indicators. These indicators are reviewed on a regular basis by the local NHS commissioners in conjunction with the independent provider.

Providers are also required to produce audited clinical outcome data of their work for the NHS, and this is benchmarked against NHS facilities. Each site is audited, as well as each consultant, so that all staff, systems and clinical outcomes come under the scrutiny of a systematic review process, led by the NHS locally.

All performance-management mechanisms are set out explicitly in the contracts, and regular performance-management reviews, plus ad hoc inspections, will ensure that our robust indicators are being adhered to.

Of course, all ITCs will be registered with the National Care Standards Commission; they are subject to inspection and registration by the NCSC before opening and at regular intervals thereafter. The NCSC also has the right to conduct ad hoc inspections in the event of any concerns over quality.

It is not the case that patients would face with a legal minefield in the event of an adverse incident. It is essential that patients are confident that if anything goes wrong, they can easily seek redress and know who to contact. This is of paramount importance in all of our dealings with the independent sector.

Bob Ricketts is head of capacity and choice at the Department of Health.