At a time when NHS bodies are under more financial pressure than ever before there is one anomaly which is worth highlighting. Personal injury victims can be paid damages on the basis that they will claim the cost of private medical care, but then such a person is entitled to keep the damages and demand free NHS care.
This anomaly arises because patients who are injured in a road traffic accident, an accident at work, or as a result of negligent hospital treatment (or any other personal injury claim) are entitled to seek the future costs of their medical care as part of a damages claim. As a result of an act of Parliament passed in 1948 when the NHS was created, a defendant (whether the NHS litigation authority [NHSLA] or an insurer) is not allowed to insist that the tort victim uses NHS services instead of seeking private care. The NHSLA or insurer has to pay the cost of future medical bills on a private basis. Hence an NHS Trust can be forced to pay damages for a clinical negligence victim to be provided with future care funded by BUPA.
However, once such a person has been awarded damages as a result of a trial or in a settlement (which will often be less than the full amount of their claim) there is no obvious legal mechanism in the National Health Service Act 2006 to stop such a person going to their local clinical commissioning group (CCG) to demand NHS medical care free of charge. Thus a person can be paid out for the costs of health and social care and still claim NHS Continuing Healthcare, which means all of his or her healthcare needs will be funded by the CCG. This seems completely unjustifiable at any time, but particularly when NHS budgets are under so much pressure.
We all lose out as a result of this anomaly. The cost of road traffic insurance payouts are met by the car insurance we all pay; employers pay liability insurance and we pay for these in the goods and service we all buy, and NHS payouts are met from NHS funds. So why should someone be able to claim the cost of private medical care and be paid out for that sum, and then be able to obtain the same care from the NHS without payment?
What is the solution? One way forward would be for the Secretary of State to use the power to make regulations to require such persons to pay for the NHS services for which they have claimed compensation. There are regulations which require overseas visitors to pay for hospital care. There does not appear to be any reason why the Secretary of State could not make regulations which allow NHS bodies to charge for the provision of NHS services where a patient has made a claim in a personal injury or clinical negligence case for the costs of that type of medical care up to the value of the sum claimed for medical care in the damages claim. A change in the law might cure this anomaly and thus both reduce our car insurance bills and add to the coffers of the NHS at the same time.
Will the government do this? I am not holding my breath.
David Lock is a barrister and QC, Landmark Chambers. He is a board member of Brook Sexual Health, a member of the BMA Ethics Committee, and a Honorary Professor at University of Birmingham. He has set up a website www.gplaw.co.uk, which pulls together law, guidance, and practice that affect general practitioners.
Competing interests: I am a member of the Labour Party and chair the West Midlands Branch of the Labour Finance and Industry Group. I am a non-executive board member of Heart of England NHS Foundation Trust. My wife is a doctor who is employed by Worcestershire Partnership NHS Trust.