One of the most significant shifts in indemnity provision within General Practice occurred as of 1 April 2019 when the Clinical Negligence Scheme for GPs (“CNSGP”) was introduced. Given the seismic change, there is perhaps understandably some confusion as to what is and is not covered. In the first of a series of articles considering the scope of the new scheme and some key types of negligence claims seen, we aim to clarify some of the significant points and offer direction as to what resources are available to GPs.

Background

Historically GPs have bought indemnity cover on either an individual or group basis from one of the three main Medical Defence Organisations (MDOs) or private insurers. From 1 April 2019, this is no longer necessary for clinical negligence claims, providing key criteria are met. It is important to state from the outset that separate indemnity cover remains a requirement for other liabilities such as representation at inquests, GMC Proceedings or disciplinary investigations and any private work.

What and/or who is covered?

In simple terms, clinical negligence claims for treatment provided under a Primary Care Contract, when that treatment was provided on or after 1 April 2019 will be covered. Where a service is not provided under a Primary Care Contract (or direct sub-contract) there may be cover if the treatment can be defined as an “Ancillary Health Service”, as defined in the Scheme Rules. To be deemed an Ancillary Health Service, the activity must be an NHS service, provided by, or under a contract with, a person or organisation whose principal activity is to provide primary care under a Primary Care Contract and the activity in question must be connected to the diagnosis, care or treatment of a patient. All employees of an organisation are covered so long as the treatment being provided falls within a contract that is covered. The identity and location of the individual carrying out the treatment is not paramount, the key consideration is “what contract is the service provided under”. 

How do I register/prove I am covered?

There is no registration process or payment of subscription required to join CNSGP. From 1 April 2019, all treatment that falls to be covered will be covered. There is also no requirement to show proof of cover.

Run off cover

Claims relating to treatment provided prior to 1 April 2019 will rest with previous indemnity providers. MDOs and private insurers typically offer cover in different ways, with MDOs usually offering cover based upon incident date (i.e. no matter when a claim is received, if the incident occurred during the period of cover, then indemnity will be provided, subject to individual terms); whereas private insurers usually offer cover on a claims made basis, (i.e. the claim has to be received in the period of cover, and subject to the retroactive date, the incident may have occurred sometime previously – known as “claims made”). If cover was previously arranged on a claims made basis, run off cover will be required to ensure adequate cover for any claims received post 1 April 2019 that relate to incidents occurring before that date. 

Additional cover required

As stated earlier, there are matters which will not be covered by CNSGP and it is essential that GPs maintain separate indemnity for legal costs associated with proceedings which include (but are not limited to) regulatory investigations, disciplinary investigations, inquests and private work. 

We recommend that GPs familiarise themselves with the helpful guidance that has been set out on NHS Resolution’s website, which is regularly updated. This can be found here.

How we can help

Capsticks is an NHS Resolution panel firm with a dedicated team of lawyers that has experience of handling claims against GPs, as well as inquests, regulatory investigations and disciplinary investigations. We also provide a range of business services to the wider GP sector. For further information, please contact Majid Hassan, Joanna Bower or Ed Mellor.