Private healthcare continues to grow rapidly in the UK. As NHS waiting lists have increased, more patients are turning to private providers. Recent figures suggest that nearly one in eight people now holds private medical insurance. With this growth comes an assumption – shared by many patients – that private treatment carries safeguards at least comparable to those in the NHS, if not higher. Yet clinical negligence litigation exposes situations where those safeguards do not operate as expected.
Indemnity cover issues
One particular challenge arises when negligent treatment occurs and the doctor has no responding indemnity cover for the claim. In a clinical negligence claim I concluded recently, it emerged during the litigation that the private surgeon’s insurer had declined to provide indemnity. For my client, this created a deeply uncertain position. The prospect of obtaining meaningful compensation became dependent on whether the surgeon would ultimately be able to satisfy any judgment.
This highlights an important difference between NHS and private healthcare litigation. Claims arising in the NHS in England are met through the Clinical Negligence Scheme for Trusts, administered by NHS Resolution. By contrast, private healthcare relies largely on individual clinicians maintaining effective indemnity arrangements and these individuals notifying insurers of incidents or complaints. However, multiple notifications can affect claims history, insurance premiums and, in some cases, the willingness of insurers to continue providing cover. That dynamic creates an inherent tension within a system that relies heavily on individual reporting.
Hospital governance
In many cases, the focus will remain on the conduct of the individual consultant. But where warning signs suggest a pattern – such as repeated complaints or earlier claims – scrutiny may extend to the hospital’s governance and oversight of the consultants. Private hospitals generally operate through practising privileges, under which consultants are independent practitioners granted permission to admit and treat patients within hospital facilities. Hospitals typically verify qualifications, regulatory registration and the existence of indemnity insurance before granting those privileges.
Where significant concerns emerge about a consultant’s practice, the question arises of whether governance systems designed to protect patients were operating effectively. Under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, providers must ensure safe care and investigate incidents (regulation 12) and maintain effective governance systems for monitoring and managing risk (regulation 17).
Alternative routes to liability
Depending on the facts, potential routes to liability, alongside possible allegations relating to governance, may include vicarious liability and a non-delegable duty of care on behalf of the hospital. In Barclays Bank plc v Various Claimants UKSC [2020] 13, the Supreme Court emphasised that vicarious liability will not automatically arise where the wrongdoer is an independent contractor. However, organisations that assume responsibility for individuals’ safety may, in some circumstances, owe non-delegable duties, as recognised in Woodland v Essex County Council [2013] UKSC 66. Litigation involving private healthcare providers continues to test how those principles apply in practice.
Practical litigation lessons
The case referenced earlier required consideration of issues around vicarious liability, non-delegable duty of care, as well as hospital governance failings – and there were a number of practical considerations.
First, seeking early disclosure of the indemnity policy wording, paying particular attention to notification clauses which may determine whether cover was properly declined. Considering specialist insurance advice where cover had been declined and checking whether the claimant’s household insurance policy includes judgment debt cover if the defendant could not satisfy a judgment was also important.
Allegations concerning vicarious liability, non‑delegable duty of care and hospital governance failures should be pleaded as carefully as possible, so that disclosure requests are squarely anchored to the issues in the proceedings.
Where multiple claims exist against the same clinician, collaboration with other claimant teams can help in identifying witnesses, patterns of practice or previously disclosed material. Witness appeals through Action against Medical Accidents or the Association of Personal Injury Lawyers, or carefully managed social media outreach, can also help identify other affected patients or witnesses.
Cases involving doctors without responding indemnity cover raise broader questions about accountability within private healthcare. Patients who undergo treatment in a private hospital reasonably expect that safeguards exist to ensure that compensation will be available if negligence occurs. Yet the current framework relies heavily on individual clinicians maintaining indemnity insurance and complying with policy notification obligations. Private hospitals commonly require proof of insurance when practising privileges are granted, but governance systems do not necessarily ensure that insurers are notified when complaints or adverse incidents arise.
A possible reform would be to strengthen the governance obligations of private hospitals regarding indemnity oversight. Hospitals could require consultants to confirm that their insurers have been notified of relevant incidents. Linking governance systems more closely to indemnity notification could reduce the risk that cover is later declined.
More broadly, policymakers should consider whether a wider safety net is required. In other areas of law, mechanisms exist to protect victims where insurance arrangements fail.
Alex Dabek is a partner in the spinal injury team at Bolt Burdon Kemp, London
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