The Department of Health and Social Care has announced the launch of “A Consultation on appropriate clinical negligence cover for regulated healthcare professionals and strengthening patient recourse”.
What are the concerns with current indemnity cover?
- the indemnity providers who provide cover for many healthcare professionals do so under discretionary indemnity arrangements (MDU, MPS, MDDUS) meaning that, unlike commercial insurance companies, they have no contractual obligation to meet the cost of any claim against the professionals they cover;
- such indemnity providers have no legal obligation to ensure they have the reserves to cover the cost of claims, raising the risk of a patient, ultimately, being unable to access appropriate compensation;
- they do not have to disclose their full financial position, meaning that healthcare professionals may be unaware of the extent of their financial cover; and
- they are not subject to regulation on financial conduct and fair treatment, leaving healthcare professionals at risk of unfair treatment.
In light of these concerns, the Government is launching a public consultation on current clinical negligence cover arrangements, and is seeking the public’s views on how to achieve the following objectives of ensuring that:
- patients harmed by the negligence of regulated healthcare professionals can access appropriate compensation;
- regulated healthcare professionals hold stable and sufficiently funded clinical negligence cover, thereby reducing potential risks of prohibitive costs to the healthcare workforce and the patients they treat failing to access appropriate compensation;
- regulated healthcare professionals have greater clarity and confidence about the security and terms of their cover, as well as suitable patient protection in the event of a dispute with their indemnity provider; and
- patients have greater clarity and confidence in their recourse to any compensation.
As the Government seeks to address concerns about the stability of the current forms of indemnity cover through appropriate supervision and financial regulation, what of the repercussions for the Medical Defence Organisations (MDU, MPS and MDDUS) and the potential frailty of discretionary indemnity provided to their members?
MDU members will recall that from April 2000 until April 2013 they enjoyed the benefit of insured, contractual indemnity – a decision robustly supported by the MDU in its 2010 Annual Report, stating; “It remains your Board’s view that insurance offers the best guarantee of compensation for patients and indemnity for practitioners.”
Further, the MDU’s submission to the indemnity review undertaken by Department of Health & Social Care in 2010 (Independent review of the requirement to have insurance or indemnity as a condition of registration as a healthcare professional) Dr Christine Tomkins, Chief Executive, The Medical Defence Union advised;
- We have made the case to the Department of Health that, in the public interest, insurance should be mandatory for doctors and dentists, and discretionary indemnity should no longer be acceptable.
- The MDU does not believe that discretionary indemnity provides acceptable safeguards for practitioners and patients in today’s medico-legal climate. We continue to believe it is in the public interest that all healthcare professionals are insured.
- We believe it is in the public interest that all healthcare professionals are insured. We have been using our best efforts to highlight the problems with discretionary indemnity for well over 10 years and find it hard to believe it is still allowed in the UK. In Australia, for example, it was outlawed in 2003.
- The MDU believes that doctors, dentists and patients should have the reassurance of a contractual guaranteed of indemnity for clinical negligence claims.
The consultation, which closes at 11:59 pm on 28 February 2019 will have particular resonance with doctors exposed to the risk of 3rd party claims through the delivery of employed or contracted medical services to professional sportsmen and women via clubs and sporting organisations.
It is an interesting development in an area that has been subject to much contradiction and increasing cause for concern.
SEMPRIS remains the only UK indemnity to protect doctors against the third party risks associated with treating professional sports people. In addition, SEMPRIS covers all aspects of independent private practice, including all non-sport related practice and professional issues not covered by the NHS.
To discuss any of the issues highlighted in this article, please do not hesitate to contact us:
0208 652 9018 (24hrs)
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