The Pleasures and Perils of Private Practice

Most doctors get enormous satisfaction from working with patients, and the positive difference they make to so many lives. The NHS is as venerated by healthcare professionals and the general public as it has ever been, and rightly so. However, anyone with experience of the early years of training and practice knows how exceptionally tough that period can be. The recent slew of medical memoirs and high-profile disputes, such as the government’s changes to the NHS junior doctors’ contract, have made it more obvious than ever what a significant toll those years can have on doctors, both personally and financially.

So, anyone who becomes a consultant is to be highly praised not just for their medical skills, but also for their resilience. Many consultants (no reliable figures are available to say exactly how many) will at some point do private work. This is entirely understandable. The opportunity to earn additional income, and the hope of escaping at least some of the bureaucracy, must be extremely welcome after the challenges of a working life entirely within the NHS.

However, consultants starting out in private practice after years in the NHS are not necessarily equipped with all the additional knowledge and skills to run what is, in reality, a small business. Some of them face a rude awakening after tripping up over the many hazards that private practice can present. For those who turned to private practice as a way to increase income and reduce stress, imagine the sheer disappointment of having to deal with things like allegations of clinical negligence, breach of data protection laws, or even tax disputes. The pressure can be even more intense for those who are juggling private practice with ongoing NHS commitments, as well as family life.

The first key to success in private practice is to be realistic about what it will involve. There will inevitably be a learning curve on the ‘business management’ side of things. You personally will have to deal with issues that would be the responsibility of others as an NHS employee. Yes, some of it may be stressful, frustrating, time-consuming and expensive at first. If you acknowledge those realities in advance and take action (for example temporarily scaling back other responsibilities, or seeking additional help with childcare) then the transition to part or full-time private practice should feel a lot smoother.

The second key to success is having a support structure in place for your private practice. Think about whether you have any trusted friends or colleagues who also do private work, who might be willing to act as a ‘mentor’ for a while. Even more importantly, make sure that you have access to the right sort of professional advice. For example, you should choose an insurance broker who will work with you to make sure that you definitely have all the types of insurances you need (which will likely range from Medical Indemnity insurance through to Cyber insurance and possibly Employers’ and Public Liability depending on your circumstances). Similarly, make sure that you have access to confidential medico-legal advice. Many of the hazards of private practice are related to the tangle of laws and regulations you will have to navigate, and there is no substitute for being able to speak to someone qualified to give reliable help.

Just to give you an insight into the sort of issues you will need to manage in private practice, here are some comments on topics that can often cause problems. Please bear in mind that this is a far from a comprehensive list.

Data protection

Patient confidentiality has always been paramount, but the financial consequences of failing to protect patients’ data (including sensitive health data) are more severe than ever under the Data Protection Act 2018. The publicity around GDPR has also raised awareness with patients about their rights relating to their data. Don’t treat data protection as an afterthought – patient confidentiality and data protection need proper planning and care to get right. You will need to be registered with the Information Commissioner’s Office, and the ICO website has some helpful resources about your responsibilities as a doctor in private practice. Other practicalities will include making sure that all your electronic communications are definitely encrypted (please don’t assume that consumer email services such as Hotmail and Gmail are sufficient), and training any admin staff you employ on how to keep data secure.

Marketing and PR

Some doctors need to publicise their practice, but care is needed to avoid problems. The data protection laws restrict what you can do in terms of sending out mass emails, for example. The GMC Code of Conduct contains guidance on what publicity activities are appropriate, and the rules about conflicts of interest can also be relevant where mutual referrals or financial incentives are involved. Vitally, don’t assume that you can safely emulate the publicity you see from other doctors. For example, it has become very common for aesthetic doctors to post patient photos online, including on services such as Instagram. However, few of those are doing so in a way that complies with professional obligations, and huge numbers of doctors could well face regulatory action and claims as a result.

Dealing with complaints and claims

This is a huge topic in itself. There is a real skill in managing patient complaints and claims appropriately, including knowing how to phrase things in written correspondence. It takes time and professional guidance to acquire those skills. Even if you are used to helping to manage dissatisfied patients in the NHS, in private practice there are many other factors to manage. These include your wish to preserve the reputation of your private practice, your contractual obligations to your insurers and the possibility of fee refunds. On top of that you may well feel that the complaint is more ‘personal’ and upsetting than a similar complaint in an NHS setting. It is crucial not to feel pressured into responding to patients immediately and to seek medico-legal guidance, as well as guidance from your insurers, before you do anything substantive in response to a patient complaint.

Choosing patients

You need to think differently about patient selection in private practice. Don’t have an ‘NHS mind-set’ that you are obliged to treat everyone who comes your way. And don’t assume that ‘beggars can’t be choosers’ and take on any private patients available to build a practice. As long as you are not engaging in discriminatory behaviour, you can refuse to accept private patients in many circumstances. It is important to remember that this is good risk management and is also best for the patient. If you are unsure whether you can fulfil the patient’s needs (including managing their expectations where relevant), then it might be best to refer them to someone else rather than risk disappointing them and inviting a complaint or claim.

Contracts with private hospitals, or private health insurers

Unless you are setting up your own clinic, you may well need to gain practising privileges at one or more private hospitals. Many surgeons will also need to get on to the approved surgeon lists of key private health insurers. Most hospitals and health insurers have their standard contracts that they will oblige self-employed private consultants to sign. However, it is important to properly understand the terms of those contracts, as well as any additional policies that the hospitals will require you to follow. Some consultants have signed hospital contracts, only to realise years down the line that various onerous terms apply if they want to cease practice at that hospital. Similarly, some doctors have got drawn into disputes with health insurers about the correct categorisation of particular procedures, and accordingly the correct fee. While individual doctors may not have much negotiating power with large private hospital groups or health insurers, they should at least have their eyes open to what they are signing up to. This should minimise the risk of inadvertent breaches, and of wasting significant time dealing with disputes with hospitals and health insurers.

About the author

Joanne Staphnill, Partner - DWF LLP

Joanne Staphnill

After reading Law at Cambridge, Joanne was called to the Bar in 2003 and her work in pupillage included many clinical negligence and high-value personal injury cases. She re-qualified as a solicitor in 2006, and since then has regularly defended clinical negligence claims and has excellent experience in resolving claims through the pre-action protocol, alternative dispute resolutions and through the courts. Joanne always aims to understand whether a claim may affect the clinician’s professional reputation and takes pride in guiding clients who are unfamiliar with the legal process. Joanne and the DWF team continue to provide legal assistance and support and she produces extensive risk management materials for Incision members.