PI Brief Update

Replacing PIP implants for Peace of Mind, the Law and the Politics - Hugh Preston, 7 Bedford Row

18/01/12. The government has been drawing attention recently to the “moral duty” of private clinics to replace PIP implants where this is required for peace of mind.  Is this merely a moral duty or is it a legal duty?   If so, how should the NHS proceed if it wishes to recover its costs from the clinic, given that the obvious claimant to such a legal claim would be the patient, and not the NHS?   It can be done, but the NHS should take care how it proceeds.

First, the basics.  What are the patient’s rights?   Claims against the manufacturer of the implants under the Consumer Protection Act 1987 would have been the obvious choice, but the manufacturer is in no financial position to deal with the claims (it is in liquidation), and the possibility of a claim directly against insurers also appears remote.   Claims are therefore currently proceeding instead against the private clinics that supplied the implants.   The cause of action is in breach of contract, in that it is alleged that goods of unsatisfactory quality were supplied, in breach of the Supply of Goods and Services Act 1982.   Plainly, this does not require proof of negligence or fault by the clinic.

In many cases, it is alleged that personal injury has been sustained as a result of substandard implant materials, including the effects of premature rupture, silicone leakage etc.. However, in some cases claimants have suffered no injury but simply want damages to pay for the implants to be replaced for peace of mind.   If (as is alleged) the goods are of unsatisfactory quality, then this is the contractual and statutory remedy to which claimants are entitled, proof of injury not being required in the law of contract.   

The government’s position in all this is interesting.    The NHS appears minded to allow for the cost of removing PIP implants in appropriate “peace of mind” cases to be carried out at public expense where clinics refuse to pay, but the government also appears to want the clinics to be pursued with all lawful means to shift the burden to the private sector.   These are commendable aims, but the difficulty is that the NHS itself has no obvious legal recourse to sue the clinics for its outlay.   In the meantime, the patient who does have the right to sue can now look to the NHS to provide the treatment rather than the clinic, thus shifting the financial burden from the private sector to the taxpayer.

The solution to the government’s dilemma is for the NHS costs to be included in the victim’s private law claim against the clinic.   The NHS could then assist the victim in bringing such a claim if that is how she wishes to proceed.

There are two ways in which this can be achieved.   One is via the mechanism of the Compensation Recovery Unit, which would oblige the clinic to refund the NHS for its treatment costs in the event of a successful personal injury claim by the patient, pursuant to Part 3 of the Health and Social Care (Community Health and Standards Act) 2003, in respect of injuries occurring after 29 January 2007.   This is not without difficulty though because for many cases, injuries will have been sustained prior to this date.   Conversely, for the pure “peace of mind” cases, it remains to be seen whether the statutory machinery applies at all, if no injury has been sustained until the point at which the patient goes under the knife to have the implants removed.    To meet these potential challenges, amendments could be made to the regulations to ensure that all such cases fall within the statutory scheme. 

An alternative option is for the NHS to offer to enter into a standard form agreement with the patient, prior to the removal of the implants, that in the event of a successful claim by the patient against the clinic, the claim will include the NHS costs, and those costs will be reimbursed to the NHS if successfully recovered from the clinic.   Provided that this could be done in such a way that it does not disadvantage the patients (who must be left free to decide for themselves whether to make such a claim, and indeed whether to enter into such an agreement) it could be a neat solution.   The patient has the interest in making the claim to recover costs not covered by the NHS (i.e. the cost of new implants being put in, for which it seems the patients will continue to have to rely on the private sector), and the NHS has the interest of recovering its outlay in taking the PIP implants out.

Since the NHS would have an interest in the outcome of any claim that is brought by the patient against the clinic, and would also want to encourage such a claim being brought, it might go further and set up a scheme to provide legal assistance to the patient in pursuing the clinic concerned.   Such claims would include both the NHS outlay and the victim’s private claim, much as would be the case in a road accident claim involving the interests of both the driver and the insurer.   In practice it is only a matter of time before there is a judgment from the High Court in the litigation already underway (in at least one case, pleadings have already closed) as to whether the clinics are legally obliged to pay for revision surgery.   Once this happens and the legal principle has been established, then one could expect such claims to be processed on a fast track basis without significant legal expense, achieving appropriate reimbursement for both the patient and the taxpayer.  

Hugh Preston is a barrister at 7 Bedford Row, instructed on behalf of several groups of PIP claimants seeking damages against private clinics 

Image ©iStockphoto.com/SanneBerg