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Top-up payments for private drugs
5 June 2009
During 2008, the previous Department of Health policy,
suggesting that patients lose their entitlement to NHS treatment
should they pay privately for something in the same episode of
care, for instance the latest cancer drug which the NHS would not
fund automatically, caused a media furore. The problem was
compounded by the fact that some NHS bodies used a more liberal
interpretation of the policy to ensure patients did not suffer this
fate, seemingly confirming accusations of a ‘postcode lottery’.
Professor Mike Richards (“the Cancer Tsar”) was asked to review
the issue, publishing his results in November 2008. He concluded
that the policy was untenable and made a compromise proposal to
allow patients to privately top up their treatment as long as it
was administered “separately” in time and locality to the NHS care,
with the patient concerned also having to pay for any associated
costs of that extra treatment, i.e. tests, follow up and the
management of any complications.
Alongside the review was published draft guidance which,
following a consultation period, was finalised in March 2009
(Guidance on NHS Patients Who Wish to Pay for Additional Private
Care). It is clear that the guidance is an attempt to address real
concerns from hospitals and PCTs about implementing the new
policy:
- “Separate” – how is it possible for hospitals
to separate drug treatment in time and place, especially when some
drugs are meant to be combined, or to distinguish the complications
of NHS drugs from private ones? Even if a complication could be
attributed to private treatment, could NHS hospitals simply turn
the patient away? Moreover, surely “separate” care contradicts the
notion of “continuity” of care and complicates matters of
communication, clinical governance and patient safety?
- PCTs - the review accuses PCTs of using the
exceptional funding process as a substitute for a proper
commissioning decision. It recommends that PCTs collaborate and
pool resources and make more “proactive decisions”. Are PCTs simply
going to be pressured to fund more drugs? How can PCTs maintain
their duty to make local decisions when they are being encouraged
to collaborate?
- Doctors – doctors are asked to exhaust all
avenues of NHS funding and also to provide patients with written
information about private treatment options. Is it conceivable that
they can add this task to the others they already perform?
Moreover, if the doctor is also involved in the private treatment,
this gives them a clear conflict of interest whereby they may be
tempted to lead people down the private route.
- Litigation - will greater involvement of
private providers at the same time as NHS care lead to more
litigation over where liability lies when things go wrong? What
indemnity provisions will be required in the first place?
- Other services – while the review does not
address services other than drugs, it will surely be only a matter
of time before patients also enquire about purchasing better,
private services/equipment on top of that which they receive on the
NHS anyway?
So how do you get it right?
Evidently, there are major implications for hospitals and PCTs
in implementing the new policy, in terms of ensuring they remain
compliant with NHS values (including having regard to the NHS
Constitution as introduced by the draft Health Bill), their
statutory duties to safeguard patient care, regulate the doctors
they employ and have adequate indemnity arrangements in place.
Our health team has a wealth of experience in working with
health bodies and can help in a number of ways:
- Undertaking a review of policies and procedures currently in
place within Trusts so as to ensure fairness, transparency,
consistency and compliance with legislation and guidance
- Advising on the safeguards necessary for hospitals to ensure
NHS and private care is kept as separate as possible and to deal
with the eventuality of when it is not
- Working with local private providers to ensure that they have
appropriate arrangements in place to work effectively with the NHS
hospitals concerned
- Ensuring that doctors are adequately validated, that their NHS
duties are not compromised by the opportunity of private work and
that they are aware of the requirements of the new policy in terms
of informing the patient of all available options and, more
importantly, gaining their informed consent of any such
treatment
- Ensuring there are adequate indemnity provisions in place and
advising on any litigation matters
- Advising PCTs on their exceptional funding policies and
procedures
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