State-backed clinical negligence scheme for GPs and run-off cover

29 May, 2019

In Anantt Dayah v The NHS Commissioning Board [2018] 3546 PHL, the NHS Commissioning Board had imposed conditions on Dr Dayah's entitlement to be on a performers list in accordance with The National Health Service (Performers Lists) Regulations 2004 in the absence of national guidelines. In order to provide NHS primary care services in England GPs must be on a performers list managed by NHS England. The performers' list system is intended to provide an extra reassurance for the public that GPs who practise in the NHS are suitably qualified, have up to date training, have appropriate English language skills and have passed other relevant checks such as with the Disclosure and Barring Service and the NHS Litigation Authority.

The conditions included the requirement to have in place a minimum of 3 years run off policy cover for all patients seen in the preceding 3 years.

Following the introduction of the state-backed clinical negligence scheme for general practitioners on 1 April 2019 (The NHS (Clinical Negligence Scheme for General Practice) Regulations 2019), Dr Dayah lodged an appeal with the First-tier Tribunal and argued that the conditions were unreasonable and unnecessary, in that following the introduction of the state-backed scheme it was a matter for him whether he elected to have in place run-off cover for past work. The 2004 Regulations and the provisions in respect of indemnity cover only applied to current and prospective work. Further, any issues relating to the appropriateness of indemnity cover was a matter for the General Medical Council under Part V of the Medical Act 1983 and not for the Commissioning Board.

The appeal was allowed (Judge Khan) by consent on terms that Dr Dayah was entitled to be included on the medical performers' list without conditions relating to insurance cover.

Simon Butler was instructed on behalf of Dr Dayah under the Direct Access Scheme. Simon provides specialist legal services for professional practitioners. Whether this advice is on partnerships, contract disputes, regulatory or litigation law it must take into account the overall medical and, where relevant, NHS regulatory framework, particularly as there are many legal challenges for doctors to overcome.


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