Would you know what to do if something went wrong with your private healthcare? Here, experts in the field give an overview of what to be aware of before choosing where to have your treatment.

All patients have rights
How indemnities could affect your complaint
Things to check when considering private healthcare

When it comes to private healthcare, how you complain and who you complain to is different to the NHS. These differences, and the issues they can create for private patients, were highlighted in 2020 by the Paterson Inquiry report, which called on the government to give more clarity around complaints, indemnity and liabilities. In the meantime, patients who are thinking about having any private procedures have a few more questions to ask – even before settling on a hospital or consultant.

“People have to pause,” says Karen Harrowing, a former independent advisor to the Paterson Inquiry. “Because we're so embedded with everything that is the NHS, people don't naturally think about the investment they are making in buying healthcare.” 

All patients have rights

Whether you go public or private for treatment, all patients can expect professionals and the providers to act with a ‘duty of candour’. “The first line of duty of candour is the general requirement to be open and transparent about the healthcare services you deliver. To my mind, being transparent on the healthcare services you deliver should also mean telling people about the variances around complaints,” says Karen.

NHS patient rights are covered under the NHS constitutions and charters for England, Scotland and Wales. Under the NHS Constitution, NHS patients have the right to make a complaint, and to escalate it to an independent body. That means every NHS hospital has to have a complaints procedure, which can be escalated to the Parliamentary Health Service Ombudsman (and equivalent organisations in Scotland and Wales).

However, “the Ombudsman is not able to manage private complaints at this time,” says Karen, meaning that this option isn’t available to private patients, even those getting private treatment through an NHS hospital. The closest equivalent service is the Independent Sector Complaints Adjudication Service, or ISCAS. All larger independent hospitals are signed up to ISCAS, which provides independent, third-party arbitration if complaints aren’t resolved directly with the hospital. 

“Organisations voluntarily subscribe to ISCAS but that’s neither mandated nor universal,” says Karen. This means that while the majority of hospitals offering private treatment do subscribe to ISCAS – around 95% of independent hospitals according to the latest figures from ISCAS – not all are. 

What this means for you

Because an ISCAS subscription isn’t mandatory, it is possible you could end up having treatment at a smaller hospital or clinic where you would not have access to an independent complaints process – an issue that’s currently being looked at by the Government.

“The action from Government is to ensure that organisations like the CQC [Care Quality Commission] are monitoring when they inspect an organisation that there is an external [complaint] review stage, that organisations themselves are advertising their complaints procedure and ensuring that patients have access to it,'' says Sally Taber, Director of ISCAS. If a hospital’s complaints process isn’t made clear from the start, patients are within their rights to ask to see it. 

It’s worth noting that ISCAS deals with complaints related to care provided by the hospital, and can’t deal with complaints related to things like clinical negligence or financial complaints. Clinical negligence complaints should go to the relevant professional regulator, or patients should seek accredited legal advice. Patients with private medical insurance can take their financial (but not clinical) complaints directly to their insurer, and escalate to the Financial Ombudsman Service.

How indemnities could affect your complaint

All medical professionals in the UK are legally required to have indemnity insurance, which gives cover to doctors in the instance that a patient makes a claim for compensation. For NHS pathways, indemnity and compensation claims are handled by NHS Resolution, whereas for private pathways, there is no single organisation responsible for private healthcare claims.

“If doctors [in private healthcare] were employed by their hospital, then the differences in indemnity wouldn't be such an issue because of the employer’s responsibilities,” says Karen. “An issue with private healthcare is the high proportion of doctors who are self-employed and engaged through ‘practising privileges’. They are responsible for their own indemnity, and those are often discretionary and not subject to external regulation.”

What this means for you

Because consultants working privately usually do so often as a self-employed individual, the hospital isn’t necessarily liable for the consultant’s independent practice, and patients risk being caught up in a ‘liability gap’, i.e. whether what went wrong was the fault of the hospital or the consultant. “It does mean that when things go wrong with patients, the very thing they rely on isn't necessarily there as a safety net in the same way that a patient in the NHS can be assured that the NHS Resolution would pay out if fault was found,” says Karen. With privately funded care, there is no central body in charge of resolving who is responsible for the failure, as NHS Resolutions does for NHS funded care.

Dr Rob Hendry, Medical Director of indemnity provider Medical Protection Society says: “The challenge is marrying up the local complaints process with financial compensation. I think what upsets [private] patients and often drives them to seek legal advice is the feeling that they’re not being told the whole story, that there’s some sort of cover up or a lack of openness.”

When considering private treatment pathways, Karen suggests, “think about ‘what happens when something goes wrong’? How is my treatment covered by insurance? How would my complaint be managed? Some of these questions are almost pivoted around, ‘do I have the same rights as in the NHS Constitution?” Karen suggests: “Before getting into the details of shared-decision making, patients need to understand the differences in private and publicly funded pathways.” 

Rob adds: “I think the message for patients is, if there’s something you don’t understand or are not happy about, you have a right to be told – and you should exercise that. Patients should have that sense of empowerment to make sure that they get the answers they need.”

Things to check when considering private healthcare

1. Find out if the hospital subscribes to ISCAS
If they do, their website should signpost to ISCAS. You can also search the database on the ISCAS website.

2. Find or ask for the hospital’s complaints policy and procedure
Search for it on the hospital’s website, and request to see it if it isn’t there. 

3. Check with the hospital about indemnities and insurance
Find out how the hospital and consultant are insured, and who’s responsible if something goes wrong. Make sure you have carefully read and understood the small print in the Terms and Conditions, including what is said on ‘practising privileges’, before signing them.

4. Be clear on the outcome
Make sure you and your doctor are on the same page about the outcome from your treatment or procedure. This helps to make sure you’re fully informed, and can help avoid surprises, disappointments, and possibly a complaint.

5. Know what you want to get out of your complaint
If you’re thinking about complaining, be clear on your expectations from the start. Whether it’s an apology or compensation you’re seeking, make it known from the beginning.

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