Advice & Information

The pitfalls of private health when things go wrong

Date: January 30, 2018 by IDU

They vast majority of healthcare professionals and workers are dedicated individuals performing their duties to the very best of their ability. However, in a number of recently reported high profile cases, doctors and other healthcare professionals have been found liable directly for their own negligent treatment of patients.


More often than not, if they are employees in the public sector, the NHS Trust or Clinical Commissioning Group involved would be liable for the negligence of their staff and it’s their insurer, the NHS Litigation Authority (NHSLA – now restyled ‘NHS Resolution’) which pays the compensation.


When things do go wrong in the NHS, once liability has been admitted, redress is relatively straightforward for NHS patients since the negligent doctor or surgeon is an ‘employee’. For those treated (often by exactly the same doctors and surgeons), in the private sector, the position can be far from clear.


Even though many people might imagine that, if they are paying for private healthcare, they would have access to at least the same level of redress as NHS patients when things go wrong, the reverse is true. When private patients receive negligent care, they face a tougher struggle for compensation than NHS patients.


Private health insurance is frequently offered as part of the total remuneration package by many employers. To be fair (irrespective of any political view about the merits of private health) there are undeniably advantages for the individuals participating in such schemes – most notably in speedy diagnosis and shorter waits for often life-saving treatment. Nor is private health care the exclusive province of the rich and well-to-do. Many ordinary working people may have small schemes of their own or through work.


Clinicians looking after patients in the private sector are personally liable for their own actions and for anyone else (nurses or even administrative staff) they employ to look after their patients. The same is true of your GP, who is similarly not employed directly by the NHS. The General Medical Council therefore requires that all doctors carrying out clinical duties in general practice and in private practice are adequately insured.


What is not widely appreciated, even by some in the medical profession, is that the insurance cover paid for by doctors in the private sector is discretionary rather than mandatory. Thus, if negligent treatment is undertaken in the private sector, unlike the NHS, there is no guarantee that a claim for compensation will be met.


As the law stands, private healthcare companies are not legally obligated to confirm whether an individual surgeon, or practitioner has adequate insurance before treatment is carried out. Nor do they ‘employ’ these professionals – they merely give them’ practising privileges ‘in their hospital or clinic – so claim they have no obligation to injured patients. It is therefore the individual, not the private clinic, any injured private patient would have to sue.


Even if a surgeon is insured, cover can be withdrawn at any time and on a retrospective basis, leaving private patients without the possibility of compensation for injury caused by error or negligence. High profile cases such as that of Ian Paterson, the jailed surgeon who performed unnecessary surgery on hundreds of patients at the Heart of England NHS Foundation Trust and in the private Spire Hospital over many years, highlights this very issue.


Moves are afoot to eliminate this discrepancy between public and private health care sectors, but as a consequence, a large number of patients who were treated privately, or through the NHS or a mixture of both, by Paterson endured years of uncertainty before finally achieving a settlement.