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Who picks up the liability for operations and procedures backlogged due to COVID-19?

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Prior to the current lockdown, routine operations that had been delayed and procedures that were booked for April 2020 had started to resume by the private healthcare sector, including Spire Healthcare and the Ramsey Health Group taking over responsibility for some of the backlog.

This is further to a £10 billion, four-year contract, which was set to begin in November. However, it is unknown at what speed the private health care sector will be able to work through the backlog and for those with sufficient means, the opportunity to pursue private treatment to beat any list remains an attractive one.

Given this contract and the temptation of circumventing waiting lists, it is important to consider who will be legally liable if the treatment provided is below an acceptable standard.

Under previous schemes - such as the choose and book NHS referral scheme - national health users would see clinicians and surgeons at private healthcare organisations and any potential claims were covered under the NHS Resolutions’ Clinical Negligence Scheme for Trusts (CNST), akin to a patient being treated at an NHS trust. It is unclear whether this scheme will remain in place covering any liability incurred from these new contracts, or whether it will fall to the healthcare providers to indemnify those with practicing privileges.

There needs to be adequate and sufficient provision for any liability arising from potential claims.

Let’s, for example, consider the scenario patients found themselves in after receiving treatment from Ian Paterson, the convicted and incarcerated breast surgeon who performed thousands of negligent and unnecessary procedures across a 14-year period. These treatments took place at both NHS hospitals and in the private healthcare sector. Paterson’s private insurers, however, would not indemnify his actions due to criminal activity. Compensation was then sought from Spire Healthcare, who denied any liability for Paterson’s wrongdoings until a criminal conviction was obtained, when they, along with his private insurers, set aside funds for compensation of private patients.

Kashmir Uppal, the partner who acted for and continues to act for many of Paterson’s former patients, said: “While we welcome the initiative, we also need to ensure that patient safety is top of the agenda. Therefore, there needs to proper and effective clinical governance in the private healthcare sector to ensure that there are checks and balances to prevent rogue surgeons, such as Paterson, harming vulnerable patients.”

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