To reduce NHS waiting lists patients may be referred by their PCTs for treatment to ISTCs (Independent Sector Treatment Centres). There are checks and balances in place to try to ensure that the standard of care at an ISTC is equivalent to the care received in the NHS but if the patient suffers an injury as a result of negligent treatment who should he sue for compensation? The question is important not only for the patient but also when considering whether a claim should be reported to the NHSLA or referred back to the ISTC. In brief, the answer is that in most cases the patient can sue his referring PCT under the CNST scheme and so the matter should be reported to the NHSLA.

General legal principles

In common law the general legal principle is that if you are injured in an accident you sue the party who is legally responsible. Accordingly an NHS patient who has had treatment at an ISTC, following a referral by his PCT, is entitled to sue the private clinic for compensation. However, as a result of a special arrangement between the NHSLA and Department of Health where the treatment has been commissioned by a PCT, the NHS patient can also pursue a claim against the PCT, under the CNST Scheme.

If a patient was treated privately at the ISTC without having been referred by his PCT then the CNST cover will not apply and should he wish to make a claim for compensation he should pursue the private care provider direct.

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Clinical Negligence Scheme for Trusts

ISTCs cannot join the CNST scheme in their own right but they can benefit from CNST cover for clinical negligence claims by NHS patients via the membership of their referring PCT. ISTCs must obtain their own insurance for other types of potential claims. ISTCs are required to comply with CNST rules and to co-operate with the NHSLA. Importantly ISTCs must have effective risk management systems in place which reflect the CNST General Risk Management Standards set by the NHSLA. The required risk management systems are a further benefit to the NHS patient in helping to ensure high standards of patient safety. Should the ISTC be notified of a claim they must then report directly to the NHSLA or to the referring PCT who will, in turn notify the NHSLA.

Responsibilities of the commissioning PCT

A high burden of responsibility rests upon the NHS body which commissions private care for NHS patients; it should be noted with some caution that if an independent provider cannot comply with the relevant CNST risk management standards the NHS body which commissioned the care may itself face a claim in negligence. If you would like assistance with this issue, one of the Bevan Brittan Medical Law and Personal Injury team would be happy to help.

A patient who has been referred for care in the private sector, other than an ISTC, will not necessarily have the benefit of CNST cover and therefore it is important that the referring NHS body ensures that the private care provider has adequate insurance in place.

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Why does the CNST scheme cover ISTCs?

CNST cover for clinical negligence claims means that for their NHS patients the ISTC does not need to incur the cost of commercial insurance for clinical negligence claims. If such commercial insurance was required the cost of the treatment to the NHS could be prohibitive as inevitably the cost of the insurance premium would be reflected in the total price of the treatment. Also, if each ISTC purchased different commercial insurance products there would be a risk that NHS patients may have different levels of insurance cover, depending on where they had been treated, which would be inequitable.

Practical Steps

When you receive a notice of a claim or Claim Form which concerns treatment at a private hospital:

		Check whether the hospital is an ISTC. If not, refer the Claimant’s solicitor back to the private provider and advise them that the claim will be dealt with by their insurers.
		If the private provider is an ISTC, check whether the Claimant was referred by the PCT. If not, advise the Claimant’s solicitor again to contact the ISTC direct.
		If the Claimant was referred by the PCT, inform your CNST contact immediately.

As always, if you have any queries, your NHSLA contact will help you, or feel free to contact one of the Medical Law and Personal Injury team at Bevan Brittan.