Healthcare Brief: market insights - March 2023
A summary of key developments which include a Call for Evidence to explore the option of a dual/multiple personal injury discount rate; publication of the summary of responses to the consultation on appropriate clinical negligence cover; the Powers of Attorney Bill; a letter to the profession from the General Medical Council; and draft statutory guidance issued on the protection of patient data.
Call for Evidence explores option of a dual/multiple personal injury discount rate in England and Wales
In advance of the next formal review of the personal injury discount rate in England and Wales - which must begin by 15 July 2024 - the Ministry of Justice issued a Call for Evidence on 17 January 2023, seeking additional evidence and views on the introduction of dual or multiple rates.
With existing legislative provision for different rates to be applied to different types of case, the models in operation in Hong Kong, Canada (Ontario), Jersey and the Republic of Ireland, are given as examples. Among the options referenced in the Call for Evidence “is to have different rates by duration of award – with one or more short-term rates, and then a longer long-term rate” enabling “rates to be set which reflect likely levels of return for short and long-term yields respectively”.
The Call for Evidence closes on 11 April 2023.
A dual rate may be favourable to those indemnifiers who have a significant number of long life expectancy claims (for example those involving children) and who would benefit from the higher long term discount rate. However, indemnifiers with claims where the life expectancy is for example, less than 15 years, may see an increase in damages with the lower short-term discount rate.
Contact: Christopher Malla
Related item: Personal injury discount rate in England and Wales: exploring the options
Consultation on appropriate clinical negligence cover – summary of responses
On 15 December 2022, the Department of Health & Social Care published a summary of responses to the consultation on appropriate clinical cover for regulated healthcare professionals. The consultation explored the concerns held by the UK Government including cover being provided under discretionary indemnity arrangements with the absence of a contractual obligation to meet the cost of a claim against the individual covered.
Since the consultation, the Report of the Independent Inquiry into the Issues raised by Paterson has also raised concerns regarding discretionary indemnity cover, specifically in relation to patients’ access to compensation in circumstances where the actions of a regulated healthcare professional are deemed criminal. The UK Government has advised that it is continuing to work closely with stakeholders, and further updates are anticipated.
The possible implications of reform around indemnity and the governance of independent practitioners working in private hospitals may ultimately result in such hospitals having to employ their retained doctors. This will allow greater control and management of the doctors to reduce the risk of another Paterson scenario. The acts or omissions of the doctors will then be covered under the hospital’s indemnity arrangements rather than through the individual doctor, whose traditional cover may be discretionary or through insurance. Ultimately, discretionary cover offered by the Medical Defence Organisations may be excluded from the market.
Contact: Nico Fabri
Powers of Attorney Bill published
This private member’s bill that has been backed by the UK Government was introduced to the House of Commons on 15th June 2022 and will have a third reading, on a date to be announced. The Bill (which is subject to further review and amendment) would introduce various changes to the process involved in making a lasting power of attorney (LPA), including enabling it to be carried out entirely electronically, for updates to be made online and for an electronic copy to be produced as evidence of the LPA, as opposed to having to produce a paper copy when required. A paper or combination process would remain.
The digital system is intended to speed up the process and reduce the backlog of registrations. The possibility of completing the process digitally will hopefully encourage more of those considering a LPA to proceed while allowing those not technically confident to still submit a paper application, with or without legal support. Safeguards will need to be in place to reduce fraud and allow for ease of objections if concerns are raised. The existence and comfort of an LPA, whether health and welfare or financial, can be of an enormous benefit to both the donor and their family and the changes to improve the current processes are likely to be welcomed.
Contact: Amanda Mead
General Medical Council – letter to the profession
On 11 November last year, the General Medical Council published 'Winter pressures - letter to the profession' recognising the additional challenges the season presents alongside the “already sustained additional demand across all sectors and settings of health and care provision”.
Assuring colleagues that their “professional code and principles are there to guide and support” their “judgments and decision-making in all circumstances” the letter adds that this “includes taking into account local realities and the need at times to adapt practice at times of significantly increased national pressure”.
The GMC also point to the responsibility that all providers commissioned by the NHS and healthcare leaders have “to ensure that all clinicians working in their organisations are well supported in their work, and that channels for raising and acting on concerns remain open and accessible to all staff”.
Contact: Christopher Malla
Draft statutory guidance issued on the protection of patient data
On 23 January 2023, the Department of Health & Social Care issued draft statutory guidance (which is to be kept under annual review and updated as appropriate) - setting out measures that NHS England are expected to take “to protect confidential information when exercising the relevant data functions” defined under section 253(3) of the Health and Social Care Act 2012 (the Act).
The guidance explains that under the Act, “NHS England is legally required to have regard to this guidance when exercising the data functions that have transferred to NHS England from NHS Digital”. This follows the transfer (under the Health and Social Care Information Centre (Transfer of Functions, Abolition and Transitional Provisions) Regulations 2023) of statutory functions - “that formed part of the protection of people’s data in NHS Digital”.
The rules on collecting and disseminating data have not changed on transfer but the guidance provides for organisational and governance changes that will strengthen NHS England’s capabilities to do so whilst maintaining the same level of transparency and accountability. A specific Data Advisory Group is intended with independent advisors to provide expert advice including on a new framework to manage internal requests for access to identifiable data based on risk based assessments. The Data Advisory Group will also consider requests for third party data sharing considered complex, novel or contentious. The intended separation of powers between the executive and those tasked with managing information risks is welcomed and should provide reassurance.
Contact: Camilla Long