Exclusive: Supreme court ruling could block wave of costly legal claims against GPs

A ruling by the UK's highest court could stop GP practices being forced to pay five-figure 'conciliation payments' to patients and help slow the rise in indemnity costs, medico-legal experts have said.

In a ruling that experts say could prevent the emergence of a parallel compensation system that could have sent GP indemnity costs even higher, the Supreme Court found last month that a practice could not be ordered to pay £10,000 to the widow of a patient who had received poor care ahead of his death from a myocardial infarction.

The practice had been asked to make a £10,000 'conciliation payment' by Northern Ireland's equivalent of the health service ombudsman 'in respect of the clearly identified failings' in care provided to the patient and 'the events that consequently followed'.

The demand for payment came despite the fact that Northern Ireland's Complaints Commissioner - recently subsumed into a newly-created Northern Ireland Public Services Ombudsman - made no claim that the practice's actions had caused the patient's death.

After taking legal advice, the practice - which had apologised to the patient's widow and made changes to its procedures to prevent a similar incident in future - refused to make the payment. The Complaints Commissioner then threatened to report the practice to the Northern Ireland government, effectively naming and shaming it.

GP compensation

But in what could be a landmark ruling for general practice, the Supreme Court last month upheld a ruling that Northern Ireland's ombudsman had no power to recommend payment of a money sum to a complainant, or to make a special report to the country's legislature if the money was not paid.

The Supreme Court also criticised the basis for recommending the £10,000 payment, warning that the figure 'has simply been plucked out of the air', with no explanation of how it had been calculated.

Dr Rob Hendry, medical director at Medical Protection, told GPonline that the ruling could have a bearing on several other outstanding cases across the UK in which ombusdman organisations had recommended similar payments.

He said the case, in which the GP practice was represented by Medical Protection, was part of an emerging trend that threatened to push soaring GP indemnity costs even higher.

'It has been a recent trend - the ombudsman started to go further and in this case suggested that what was described as a conciliatory payment was made to the patient’s widow by the GP.  We were saying that looks like compensation - we were saying it was inappropriate to open up another avenue for payments in quasi-negligence way.

Legal claim

'If there is negligence, there is a court process that can decide and then agree compensation. We were concerned this would be a parallel system. In this case, the doctor had not been negligent, and the case would not have succeeded on that basis.

'Had these payments become more commonplace, where the ombudsman felt care could have been better, that could have pushed the cost of indemnity up. That was a pattern we were seeing develop that we felt we needed to do something about.'

Dr Hendry added that there were 'half a dozen' other cases in which practices faced recommendations that they make payments worth between £5,000 and £10,000 to patients. 'These are sums that look like compensation, but unlike in a civil claim where it is clear what the payment is for - loss of earnings for example - in these you are not given a reason, it is described as a conciliatory payment.

'We say it is wholly inappropriate to open up a parallel system at a time when the amount of cash being diverted into med negligence is already inappropriate.'

However, a statement from the Northern Ireland Public Services Ombudsman suggested it would continue to push for payments from GP practices in some cases.

A spokeswoman said: 'The significance of this finding is that this is the first case in which the Commissioner for Complaints legislation has been ruled upon by the Supreme Court and it affects only a number of historical cases under that legislation.

'The implications of the ruling for those cases is being reviewed by the new ombudsman and her staff on a case by case basis. In four of those cases the Commissioner recommended that a  GP practice should make a payment. In three of those cases no payment was made and in one case only a part payment was made. Given that every investigation by the ombudsman is undertaken  on a strictly confidential basis it would be inappropriate to make any comment regarding the cases under review.

'It is important to highlight that the Commissioner for Complaints legislation has now been replaced by Public Services Ombudsman (NI) Act 2016 which came into force on the 1 April 2016. The new Act provides for the new Northern Ireland Public Services  Ombudsman to recommend a payment by any Body in her jurisdiction (including general practitioners) and where these recommendations are not implemented for a special report to be laid before the Northern Ireland Assembly.'

A spokesman for England's Parliamentary and Health Ombudsman said: ‘We are aware of the Supreme Court judgment and are working through the implications of the ruling.’

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