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GP indemnity claims to be under ‘discretion’ of the health secretary

GPs will not necessarily be guaranteed cover under the new NHS indemnity scheme in England because claims will be taken up at the ‘discretion’ of the health secretary.

New guidance on the scheme, which is introduced from 1 April, states the body running the programme, NHS Resolution, will in effect decide on behalf of the health secretary whether claims are defended. Though the Government has argued the body ‘rarely’ uses this power with doctors working in NHS trusts, where the scheme is already in place.

In addition, if there is a dispute over a claim, NHS Resolution will be able to decide whether to settle – regardless of whether the GP would like to see their case defended.

The guidance states that in these circumstance, NHS Resolution will have the authority to decide the amount of money to settle on.

GPs said they were disappointed the scheme would be discretionary – which marks no change from the indemnity cover currently offered to GPs through medical defence organisations.

They also said NHS Resolution’s ability to force claims to be settled ‘doesn’t do any favours to protect the GP’s reputation’.

The NHS Resolution guidance states: ‘All benefits available under the scheme are provided at the sole and absolute discretion of the administrator [NHS Resolution] (i.e. in the exercise of the secretary of state’s functions relating to the scheme) whose decision in these matters shall be final and binding.’

It later adds: ‘Where the eligible person wishes to defend but the administrator recommends that the claim is settled by agreement, the benefits available will be no more than those accruing from the amount recommended by the administrator to be offered to settle the claim.

‘Should the eligible person continue to pursue the defence of the claim and succeed the eligible person will be eligible for reimbursement of 100% of the unrecovered defence costs up to the value of, but not exceeding those benefits available under [the scenario above].’

GPC member Dr Preeti Shukla, a GP in Blackburn who has campaigned on indemnity, said: ‘We hoped it would be non discretionary.’

She added: ‘As with MDOs, the state scheme is also discretionary – and only based on the sole discretion of the secretary of state. This means that we will not necessarily be 100% protected and won’t be covered in all circumstances. This is disappointing.

‘In the event of a dispute, the administrator of the scheme can override the GP’s opinion and the benefit would only be “to the amount recommended by the administrator to be offered to settle the claim”. This doesn’t do any favours to protect the GP’s reputation.’

But the BMA, which negotiated the state-backed deal, stressed the new scheme would give GPs the same level of protection they currently have.

Dr Mark Sanford-Wood, BMA GP committee deputy chair, said: ‘GPs should have full confidence that they will be covered in all situations – in the same way that they have confidence in their current MDO arrangements, which also affords for discretion only in exceptional circumstances.

‘There is no discretion regarding membership and there is no discretion regarding a limit on settlements.’

He added: ‘The BMA has discussed this at length with the Government and it has reiterated that outside of this exceptionality the clinical negligence scheme for general practice will be available to all GPs on the performers’ pist and will cover any claim in full.’

A spokesperson for the Department of Health and Social Care said: ‘The new scheme mirrors arrangements in NHS trusts to bring significant benefits to general practice staff.

‘NHS Resolution can exercise discretion in relation to that scheme but rarely, if ever, does so.’

The spokesperson added: ‘NHS Resolution will work hand in hand with those who find themselves the subject of a claim and only settle cases where compensation is due. The clinical negligence scheme for general practice (CNSGP) is a comprehensive scheme available to all GPs whether in GMS, PMS, APMS and other settings and GPs should be confident they are fully covered just as clinicians in secondary care are.’

The DHSC England announced the state-backed scheme in October 2017 after acknowledging the cost of medical negligence cover was affecting GPs’ ability to work. Then health secretary Jeremy Hunt said at the time that it will be ‘more affordable and reliable’.

Under the scheme, GPs will no longer have to pay for cover for any clinical negligence claims relating to NHS work – however they will still be required to continue membership with a medical defence organisation to cover them for private work and professional regulation advice.

When the new GP contract was announced earlier this year, NHS England confirmed the scheme will apply to all general practice staff.

In Wales, GPs will also see a state-backed indemnity scheme introduced from 1 April, which will be aligned as far as possible to the plans announced in England.