Why move to state-backed GP indemnity?
The annual cost of indemnity has risen to around £8,000 per average GP, reports suggest. The BMA says GP fees increased by a staggering 50% from 2010 to 2016, and GPonline reported that nine out of 10 GPs had seen their costs rise in 2017.
At a time when the government faces an uphill battle to reach its target of increasing the GP workforce by 5,000 by 2020, soaring indemnity costs are driving growing numbers of doctors out of the profession altogether and pushing many more to reduce the number of sessions they work or turn down shifts.
DHSC guidance published in November 2017 acknowledged that rising costs were a 'great source of concern for GPs and impacts negatively on the GP workforce'. It added: 'We are seeking to put in place a more stable and more affordable system of indemnity for general practice.'
How will the state-backed deal work?
The new five-year GP contract in England that comes into effect in April has confirmed that the new Clinical Negligence Scheme for General Practice, as it will be known, will start from April 2019 and be run by NHS Resolution.
NHS Resolution is an organisation made up of the former NHS Litigation Authority, National Clinical Assessment Services and the Family Health Services Appeals Unit, and already administers the Clinical Negligence Scheme for Trusts.
All NHS GP service providers, including out-of-hours providers, will be able to be members of the scheme free of charge and it will cover all GPs and other staff working in delivery of primary medical services, including locum and salaried GPs, prison GPs, nurses and other health professionals.
In an FAQ on indemnity published in November, the DHSC confirmed that practices will also be covered for any public health work they do under arrangements with local authorities, NHS England, a CCG or an NHS trust, including sexual health services, health visiting, NHS Health Checks and dealing with public health emergencies.
The scheme will only cover clinical negligence liabilities for work carried out as part of the delivery of NHS-contracted primary medical services. Therefore, GPs will need to take out additional indemnity cover any non-NHS work they undertake, to ensure they are covered for legal representation in case of a GMC referral, performers’ list action or coroner’s inquests and so they have access to advisory services if they receive a complaint.
GPs will also need to buy cover for legal representation in criminal or GMC investigations and for 'good samaritan' acts. These are also outside the Clinical Negligence Scheme for Trusts - often incorrectly referred to as 'crown indemnity' - that indemnifies doctors working in NHS hospitals.
The scheme will be established through new government regulations, which will define who is covered.
How will the scheme be funded?
Under the 2019/20 GP contract the scheme in England will be funded by a one-off permanent adjustment to the global sum. However, as a result of other investment under the contract, core funding will rise by 1.4% in 2019/20, even when taking account of the indemnity adjustment.
How much will MDO membership cost?
All of the medical defence organisations (MDOs) have said that their rates will fall once the scheme is introduced, because the potential cost of clinical negligence claims accounts for a significant amount of the membership subscription they currently pay. However, none have revealed by how much their rates will fall.
Will state-backed indemnity apply to GPs UK-wide?
The Welsh government issued an update on its progress developing a state-backed scheme in July 2018. It has said that its scheme will be aligned ‘as far as possible’ with arrangements in England to ensure GPs in Wales ‘are not disadvantaged’ and so GP recruitment and cross border activity are not affected.
It is working with GPs, MDOs, health boards and the Welsh Risk Pool to develop the way that its scheme operates. The scheme will be run by NHS Shared Services Partnership – Legal and Risk Services will run the scheme, which is the same body that manages indemnity arrangements for hospital doctors and GPs working out-of-hours in Wales.
As in England, it will only cover clinical negligence liabilities for work carried out as part of an NHS contract and will cover GPs, locums and other staff. However, in March the Welsh government announced that locums in Wales will have to sign up to a national register to be eligible for state-backed indemnity cover. Welsh health minister Vaughan Gething said the 'all Wales locum register' would improve workforce planning by helping the government 'better understand this primary care workforce demographic'.
In Scotland, indemnity costs are traditionally lower, but the Scottish government has also suggested it will not allow its GPs to be disadvantaged relative to England.
What will happen in Northern Ireland - and when - remains unclear.
Will state-backed indemnity cover historic claims?
There is still not final detail on whether the scheme will assume responsibility for historic claims, discussions on this aspect of the deal are still ongoing.
In the wake of the scheme's announcement last October, the MDU set out plans to cut costs for GPs with a 'transitional scheme' designed to take advantage of the switch to a state deal, while the other defence organisations have maintained their existing indemnity schemes.
The MDU believes the government will assume responsibility for historic claims under the state-backed deal, as was the case when the NHS indemnity scheme for hospital doctors was introduced in 1990 - although the government has suggested it may not take on these liabilities. The Welsh government has also said it is yet to decide whether its state-backed scheme will extend to liabilities incurred before April 2019.
If it doesn't, GPs on the MDU's transitional scheme could have to pay for extra 'run-off' cover if they leave the organisation - although the MDU says this will only apply for a maximum of seven years, and cost no more in total than standard indemnity cover. GPs who remain members of the MDU until the normal retirement age for their NHS pension scheme will not need to buy run-off cover, even if the state scheme does not pick up historic liabilities.
What do GPs and practices need to do now?
NHS England has said that the government and NHS Resolution will provide further details in February 2019 on the next steps that practices and GPs need to take to ensure they are covered after 1 April.
Both the BMA and the DHSC have said that GPs must retain their MDO membership until the scheme begins. They have also said that if GPs have paid in advance for their indemnity for a whole year, the MDOs should provide a rebate for the portion of cover they will no longer require when the state scheme begins. However, the DHSC said: 'The precise rebate arrangements (if any) that may be provided by MDOs will depend on the approach taken by the relevant MDO.'
Will state intervention solve the indemnity crisis?
Medical defence organisations warn that a state-backed indemnity system will not tackle the overall problem that rising indemnity costs are consuming a growing proportion of the NHS budget. They have called for a cap on the fees lawyers can charge, particularly in cases involving low-value claims, and reform of tort law to bring down costs.
A controversial change to the discount rate announced early this year by the government will also drive up the cost of negligence payouts - with the cost of some claims set to double.