The differences (that count as a lawyer) between NHS and private healthcare

There is a standard prevailing belief that some private hospitals provide a higher grade of healthcare than the NHS.  This is inaccurate.  The standard of care and expertise a patient should expect from any hospital, whether private or NHS, is the same.  There are a series of stringent guidelines and protocols which should be in place whichever hospital a patient attends.  Likewise, many doctors work in both areas and should employ the same standards in their work.

The use of private healthcare has grown but tends to be either on a one-off basis because there is perhaps a procedure that a patient cannot obtain on the NHS (some cosmetic and plastic surgery issues for example0, it is perceived to be quicker, or the patient has the benefit of private health insurance.

It is important to note that a private hospital may appear better because individuals may get their own room, a choice of cooked meals etc.  However, there are many private hospitals that do not have full facilities.  Many private hospitals don’t have for example an intensive care unit and quite often if something is wrong, they need to transfer a patient to the NHS centre locally for resolution.

So, does any of this matter if you are taking legal action?

Occasionally, and perhaps increasingly, private companies involved in healthcare can make litigation more problematic.

A claimant must identify the appropriate person or organisation to take a claim against.  In the case of NHS hospitals there is a body called the NHS Resolution which is set up to deal with these claims.  It covers more modern GP claims, some historic claims from a long time previously and NHS hospital claims.  They also cover some arrangements where NHS patients receive care in private hospitals to deal with waiting lists. This was an arrangement to deal with backlogs.  It doesn’t necessarily cover some of the work now done in hospitals such as out of hours GP work.

Private hospitals are more complicated.  An individual surgeon may have their own insurance, a private hospital should have its own insurance and an anaesthetist or other supporting clinician may have additional insurance.  Often it all works together but sometimes not. That is not to say that it is impossible to take a claim forward.  It can however be more complicated.

Does it matter that it was a private hospital during the pandemic? Well not really. Although private hospitals were in essence commandeered during the pandemic in fact the number of patients in private hospitals dropped by over 80% in April 2020.  Most work unrelated to Covid-19 was cancelled and indeed very few hospitals were used by the NHS during the pandemic at all.  Private hospitals did however benefit significantly from taxpayer funding such as the furlough scheme.   They did much less work during the pandemic.

However, there are several things which need to be considered when accepting surgery at a private hospital: –

1. Who is on call? In an NHS hospital there is a team for each speciality on call.  They are not always based at that hospital (it depends on the size) but in an average sized hospital, most common specialities will have a team.  That means even if the consultant isn’t available there should be a senior qualified member of staff.

A private hospital has a medical officer.  The medical officer may have to cover a whole variety of specialities and is unlikely to be a specialist in that field.  The consultants do not remain on site.  This means in a standard NHS hospital a consultant or near equivalent will be available at short notice.  In a private hospital, that is not the case.

2. Secondly, private hospitals do not mirror the facilities of state hospitals. Most NHS hospitals are of a reasonable size and will have, for example, full scanning facilities, intensive care, and high dependency type units.  That is not the case for many private hospitals which remain almost like small cottage hospitals dealing with particular procedures.  If you are fit and healthy and you are seeking a minor operation to remove some moles, then perhaps a private hospital with no emergency facilities is fine.  If you are going for major surgery, you may want to inquire about the facilities of the hospital that you are attending.
3. A sizeable minority of people who suffer complications in private hospitals must be transferred through to the NHS facility nearby for emergency treatment and care because the hospital they attended did not have the facilities or staff to deal with the problem. If you are being treated in a private unit based in an NHS hospital, that may not be an issue.  If you are in a private hospital at some distance from an NHS facility of a reasonable size, that may well be a significant problem.
4. Occasionally we come across individual “doctors “of varying kinds who appear to have shiny clinics but may not be as experienced as a patient may believe at a certain procedure and not always as insured as we would want them to be. Particularly with cosmetic procedures a potential patient cannot be too careful about investigating the clinic concerned. Always ask for the insurance details.
5. Note taking in private hospitals particularly amongst consultants is notoriously poorer. Clearly this is anecdotal but, in my experience, the medical records from a private hospital are often significantly poorer than that of an NHS hospital. Clinical negligence claims often need good records and that can be problematic.
6. No one wants to think of taking a claim against any hospital or health professional. Taking a claim against a private hospital can be more complicated.  Usually, the larger private insurers are well covered, set up for such claims and can deal.  A newer insurer or one for example dealing with an out of hours unit, many of which are now privatised, can be more problematic.

Therefore, in terms of patient care, it is a matter of choice, the type of surgery and the advice that you get from your health practitioner as to whether you should go for a procedure.   Care at both types of hospital should be of a good standard. However, complications may be dealt with differently.

In terms of funding, the private hospitals have done well relatively out of the pandemic in the sense that a lot of their costs have been protected and met by the state without the same outlays and staff being overwhelmed as has happened in the NHS hospitals.

In terms of clinical negligence, it can be a little bit more complicated.  The standard of care should be the same, the expectation of care is the same but there can be two or three different avenues requiring investigation before a claim can be taken forward.

Any perception of better care in the private sector is inaccurate; although the food may be better, the carpets newly vacuumed and the facilities for individual patients more comfortable. Do your homework before you have any procedure whether NHS or private. No one goes into treatment thinking about litigation but sadly sometimes it is necessary.  Choose wisely – your choice of care may have an impact far beyond the initial treatment.

Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*