Medical insurance experts have welcomed today’s government move to accept the recommendation that healthcare professionals should by law be required to have indemnity.
But the Medical Defence Union (MDU) claims this alone will not give the guarantee that doctors, dentists and patients need.
The MDU was responding to a ministerial announcement by Anne Milton which accepted the conclusions and recommendations of the Independent review of the requirement to have insurance or indemnity as a condition of registration as a healthcare professional [1].
Dr Matthew Lee, professional services director at the Medical Defence Union (MDU), said: ‘While we welcome the government’s support for recommendation one, which advocates placing a statutory duty on healthcare professionals to have insurance or indemnity, we are disappointed that the review and its recommendations did not look at the indemnity itself.
‘If, as the report recommends, there is to be compulsory indemnity then to protect patients it must either be provided by the state or in the form of an explicit and enforceable undertaking to pay for negligence claims – in other words, insurance.
He adds: ‘If there is no legal entitlement to indemnity, as is the case with discretionary indemnity, then there is a risk that deserving patients may go uncompensated. In our view, the review was lacking in that it did not consider the advisability of discretionary indemnity or otherwise and nor did it seek patients’ views on whether they would consider discretionary indemnity acceptable.’
It is believed that around 50% of doctors and 70% of dentists are not insured and rely only on discretionary indemnity.
This means there is no contract or guarantee and they will only know if they will be indemnified for a claim at the time they notify that claim.
They have no right to an indemnity, only a right to ask.
The providers of discretionary indemnity can give no guarantees and their past record in assisting doctors and dentists cannot be taken as a guide to the future.
He says: ‘We are aware of a number of cases where discretionary assistance was not provided, and patients went uncompensated [2].
‘This cannot be right for clinical negligence claims where patients who are severely damaged must be sure that they will receive proper compensation if they can prove negligence. You are not allowed to insure your house or your car with discretionary indemnity and it is unthinkable that discretionary indemnity remains acceptable for clinical negligence.
‘We introduced insurance for MDU members in 2000 because we had concerns about discretionary indemnity and the problems arising from it elsewhere in the world. We have long campaigned on this issue as we believe it is in the public interest for healthcare professionals to be insured. We urge the government to reconsider whether discretionary indemnity is adequate or appropriate.’
Example of negligence claims against dentists in which indemnity was refused
• Dr R was undertaking complex implant surgery. Initially indemnifier said they would help when claims arose but then removed support. Patients went uncompensated.
• Dr H initially represented at court by indemnifier but support later removed – Dr was nearly bankrupt and so had to represent himself. Claim settled for £5,000 which was a lot less compensation than claimant’s solicitor felt claim was worth.
References
1. Response to the Independent review of the requirement to have insurance or indemnity as a condition of registration as a healthcare professional. Finlay Scott. June 2010, December 2010, http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_122610.pdf
2. Protecting patients versus the dentist’s right to choose, Greg Waldron, Dental law partnership, Clinical Risk, (2006) 12 58-60.
