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 DHSC has said that the scheme is likely to offer cover to GPs through the organisations they work in, rather than individually. This will cover providers on GMS, PMS and APMS contracts, offering indemnity for all practice (or, for example, out-of-hours provider) staff including students, trainees and locums. It will also cover prison GPs.
In an FAQ on indemnity published in November, the DHSC confirmed that 'the scheme will cover clinical negligence liabilities of general practice staff delivering primary medical services commissioned under GMS, PMS and APMS contracts and any integrated urgent care delivered by general practice through schedule 2L of the NHS standard contract. This includes standalone out-of-hours services commissioned under an APMS contract and services delivered by GP practices under primary medical services contracts in secure environments.'
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 cover clinical negligence liabilities for work carried out as part of the delivery of NHS-contracted primary medical services, meaning GPs will need to take out additional indemnity cover any non-NHS work they undertake.
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.
In its latest update the DHSC has confirmed that it expects funding for delivering the scheme 'to come from existing resources allocated for general practice'. It is unclear exactly what the impact of this will be and the DHSC said that discussions with the GPC about how this will work are ongoing.
When will the state scheme begin?
The scheme is due to take effect from 1 April 2019. Talks between the DHSC, medical defence organisations, the RCGP and BMA are ongoing, and the DHSC has most recently said it is still 'aiming for' the April deadline.
The DHSC has appointed NHS Resolution to administer the state-backed GP indemnity deal. 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 - mentioned above.
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-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 is working with GPs, MDOs, health boards and the Welsh Risk Pool to develop the way that its scheme operates. As in England, it will only cover clinical negligence liabilities for work carried out as part of an NHS contract.
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?
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 - although the MDU says this will only apply for a maximum of seven years, and cost no more in total than standard indemnity cover.
How much money will be needed?
If the estimate that an average GP now pays £8,000 a year for indemnity is correct, the profession's total annual bill comes to around £300m. The BMA says fees rose 50% from 2010 to 2016, and GPonline polls confirm further sharp rises in 2017 for many doctors.
The government has already put £30m a year for 2016/17 and 2017/18 into a GP Indemnity Support Scheme being distributed through practices to ease the cost of indemnity.
But with costs set to rise further before the state-backed scheme is rolled out in 2019 - assuming it isn't delayed - this annual investment will likely have to be quintupled or more to bring GP indemnity costs down to the level they were at when the current decade began.
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.