Comment: Does the ‘My Choice’ self-funding scheme create clinical procedure conflict?

25th June 2019

Written by Fletchers Solicitor’s Assistant Litigation Executive, Jen Corcoran

Last week, Warrington and Halton NHS Trust published a list of nearly 50 procedures that can now be self-funded under a scheme called “My Choice”. 

This is not a new system. 

The Health and Social Care Act 2012 introduced Clinical Commissioning Groups (CCGs) to replace Primary Care Trusts. 

The Act refers to offering Choice and Competition, puts CCGs in charge of 2/3 of the budget for healthcare and makes them accountable to the Secretary of State for Health and Social Care.

As such, CCGs assessed certain services as “Procedures of Low Clinical Priority” or PLCPs and in 2013 introduced “pay for” conditions for procedures such as bunion treatment, non-symptomatic hernia repair and vasectomies. 

The cost of clinical procedures has changed since the NHS’ post 2010 election shakeup

This was not a national programme but decided on a Trust by Trust basis.

This seems to be at odds with the initial aims of the National Health Service which referred to its access to healthcare as being “comprehensive, universal and free at the point of delivery” and it certainly rang alarm bells amongst clinicians.

Warrington and Halton’s website advised the following:

The trust has launched its My Choice© service this month, an affordable self-pay service to enable access for patients denied NHS procedures classified by commissioners to be ‘Low Clinical Priority’ (PLCPs) at the local NHS price, previously paid for by commissioners. 

As well as enabling affordable, convenient access for patients, this will enable the Trust to make use of spare capacity and will generate additional income to support our other services.

Chief executive Mel Pickup was at the Trust for the introduction of the first My Choice procedures in 2013 and said: “Procedures of low clinical priority do not mean low value to our patients and we are pleased to be able to make a large number available at a really affordable price, at their local hospitals and by our most trusted NHS staff.

It goes on to say:

My Choice patients are treated as part of the Trust’s normal elective programme, there are no special privileges and they simply occupy a slot on a scheduled list.  There are no private rooms and they will join the same waiting list as NHS patients.  The major benefit is access to outstanding NHS treatments at a fraction of the cost of those undertaken by private providers. 

The key word is “elective”; implying that there are NHS patients having procedures still paid for by commissioners. 

It is reasonable to suggest that these are a higher clinical priority, but it is not clear who assesses the clinical priority of the listed procedures, or at what stage you could elect to have it done.

In 2013 the BMJ published an article cautioning that these procedures would increase and that this would create a two-tier system, but the Foundation Trust Network offered assurances that patients would not be able to “queue jump”.

This makes sense when considering a tonsillectomy. 

Tonsillitis can be managed with antibiotics, but repeated flare ups may lead a person to decide they would like surgical intervention to alleviate a chronic problem. 

However, the list of procedures published includes major surgery such as hip and knee replacements, cataract surgery and even dilation and curettage. (Also called a D&C, this is a procedure to remove uterine tissue and is used in the management of heavy bleeding or following a miscarriage/birth where products have been retained.)

If you have had a miscarriage and the associated emotional trauma, should you be asked to weigh up whether you can afford to have medical assistance?

When it comes to cataract surgery and joint replacement, these are procedures necessitated by wear and tear on the whole, or in other words, procedures needed by older people. 

These people are the ones who have paid into the NHS for decades via National Insurance contributions, and they are now being asked to pay again and potentially use savings that would have supplemented their care later in life. 

In this circumstance, the burden returns to the state and has only been delayed.

Warrington and Halton advise that My Choice is a fraction of the cost. 

So, how does it compare?

Net Doctor’s website uses prices from Thames Valley (TV) Hospital and the Spire to illustrate the range of the cost of private procedures, so they have been used for comparison:

This table shows that the “wear and tear” procedures are offered at around half the price of the private providers, so this seems a reasonable alternative for a patient considering their options. 

The D&C procedure is also offered at a significant saving. 

However, it is not so competitive for either circumcision or tonsillectomy. 

These procedures are generally practical, only required once and have minimal follow up, so do not appear to have much mark up.

‘My Choice’ prices are based on the procedures being day cases (no overnight stay required), for patients 19 years and older and inclusive of a pre-op and a follow up attendance. 

This makes no provision for further follow up, or even physiotherapy that may be required.  It also does not make it clear what happens in the event of complications that require the patient to be admitted; is this paid for by the NHS, or will the patient be billed?

In clinical negligence terms, the operations are being performed by the same overworked and under resourced clinicians as they were when they were NHS funded. 

Therefore, for a variety of reasons, there are likely to still be a range of procedures found to have been performed negligently. 

As well as the general damages award for such a negligence, the NHS would further have to refund the operation cost as it would form part of the schedule of loss.

It remains to be seen whether the NHS would value future operations required for injured parties based on its own tariff and use this to calculate settlement offers, but it is still likely a client would prefer to be funded for private treatment owing to a loss of trust.

The reaction to the launch of this service was one of outrage and concern. 

NHS campaigners, press and unions reacted rapidly and Mike Amesbury (Labour MP for Weaver Vale) announced that ‘My Choice’ had been paused. 

He was unable to advise how long this is for, and it is almost certain that other trusts will follow suit.

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