Concurrent and subsequent treatment pathways between the NHS and private practice during litigation

By Rachael Aram, a serious injury lawyer at Irwin Mitchell

It's often the case when you first take instructions from a new client that they may still be receiving treatment for their injuries via the NHS. Some may be inpatients and others already discharged into the community. 

The timing of personal injury claims, responses to pre-action protocol letters and requests for immediate needs assessments via the Rehabilitation Code vary depending on many factors including liability, the responsiveness of the other side and potential agreement and collaboration for decisions in relation to assessors, costs etc.

What do you do when clients are receiving NHS services or where these may be coming to an end due to limitations on a restricted service but where they are still receiving some services to ensure that the client’s recovery and rehabilitation remains the priority?  To verify they're able to achieve all the services they possibly can to ensure their welfare, health and recovery are at the heart of any litigation?  

The services available via NHS Trusts vary greatly depending on location.  However, clients and patients of the NHS who choose to have some treatment in the private sector are still entitled to NHS services on exactly the same basis of clinical need as any other patient and should not have any NHS services withdrawn or refused because they are having treatment elsewhere, even at the same time.

Patients' right to seek treatment where patients want

Patients and clients have the right to choose where they seek treatment, and in some cases this does result in them seeking and receiving concurrent treatment in different sectors, both NHS and private and independent at the same time.

Concurrent treatment can only be refused on the grounds of the best available clinical evidence and it's clear for whatever reason that the effects of two simultaneous sets of treatment in any one service would be detrimental. 

That's not to say, if a client chooses to receive concurrent treatment from both NHS and private sectors that there are not additional considerations that need to be made. It's essential to ensure its success that clear arrangements and communications between the two practices need to be in place to ensure there are clear and separate goals for both and accountability by both treating parties as well.  

These arrangements will include clear and time sensitive sharing of clinical information, risk management, continuity of care and safeguarding where necessary to name a few. 

From time to time, if there are any issues arising, it is important that both the NHS and private individuals know of the information available to support them in managing their responsibilities in concurrent treating arrangements and have available to them examples of guidance and good practice to assist in the management of these situations as they arise.

They should also be able to seek guidance from employers, or professional bodies if any situations arise such as confusion for patients if conflicting advice given by different therapists, if there is a failure to agree a treatment plan, or even if there are difficulties in evaluating outcomes or GAS goals for specific interventions if more than one approach is taken. 

Supporting clients

This is also where we as lawyers, can support our clients and treating therapists, not from a clinical perspective but to ensure that good communications are maintained for the benefit of our clients to achieve these outcomes and maximise any potential. 

Ultimately, clients who choose to be treated in more than one service whether NHS or private at the same time can access both services on exactly the same basis of clinical need as any patient who does not have a claim for damages and they cannot have treatment withdrawn or refused by either sector because they have both.

In those circumstances it's essential that staff, doctors and therapists are able to communicate and work together to achieve the best possible clinical outcomes for their patients, which can only be of benefit and facilitate hopefully better outcomes from a clinical perspective. 

For us as lawyers having a better understanding of the clinical systems and guidance in place allows us to facilitate such relationships for the benefit of our clients. 

Useful guides

There are some really useful guides both for treating staff - NHS and private - as well as lawyers which can be found in the following:

• Managing Conflicts of Interest in the NHS: Guidance for staff and organisations
  
  
• Health and Care Professions Council. Standards of conduct, performance and ethics. London: Health and Care Professions Council; 2016
  
  
• The Chartered Society of Physiotherapy. Code of professional values and behaviours London: The Chartered Society of Physiotherapy; 2012
  
  
• Caldicott F. Information: To share or not to share? The Information Governance Review. London: Department of Health; 2013

Find out more about Irwin Mitchell's expertise in helping people and families affected by serious injury at our dedicated serious injury section.