MDU says of indemnity consultation: If it ain't broke don't fix it

The Department of Health and Social Care’s proposal to mandate insurance as the only way of indemnifying healthcare professionals for clinical negligence claims is misconceived, says the Medical Defence Union (MDU).

The MDU made the comments in response to a consultation on clinical negligence cover. The consultation's preferred option is for all healthcare practitioners to have insurance, rather than discretionary indemnity, for clinical negligence claims that are not covered by NHS indemnity.

The MDU explains there is no need for such a radical upheaval, which would increase costs of indemnity very substantially for all doctors, with no obvious gain. Especially since the consultation does not identify relevant concerns about discretionary indemnity or explain why or how insurance would provide greater protection for patients who are negligently damaged.

Dr Christine Tomkins, MDU chief executive commented:

'The MDU has been indemnifying doctors and dentists and compensating patients for more than 130 years. This is a service from a not-for-profit mutual fund, subscribed by members, which can respond to requests for assistance however long after the clinical event the claim comes in. It does not impose financial caps and exclusions and, apart from NHS indemnity, is the only proven way of ensuring doctors and dentists are indemnified and patients are compensated for clinical negligence whenever the claim is made.

'For example, we are currently assisting a consultant member with a claim notified in 2018 from an incident in the early 1980s. Clinical negligence claims are often made many years - 10, 20, 30 or more - after the incident, and in order to compensate patients the indemnity must respond fully at the time the claim is made.

'We have provided our members with insurance policies as well as discretionary indemnity in the past and each has pros and cons. Insurers must only adhere to the terms of the policy and be adequately capitalised for risks taken on. If the cover was required to extend to unlimited indemnity, without exclusions and conditions, it would be unaffordable. But this is what doctors and patients need to meet claims which can arise many years after the clinical event.'

In the consultation, the MDU explains:

  • Thousands of doctors would be affected by the proposed changes which would apply to any healthcare practitioner doing non-NHS indemnified clinical work. The consultation mentions only NHS dental practitioners and independent private practitioners but it will apply to hospital doctors and GPs doing private work such as writing reports, medico-legal work and professional attendance at charity and sporting events - whether paid or voluntary - and to every other healthcare practitioner doing this type of work.
  • Making doctors have insured indemnity will increase the costs substantially, while there is no evidence this will increase protection for patients. This is bound to have an impact on doctors' ability and/or willingness to undertake such work to the detriment of everyone.
  • The MDU has been defending doctors for over 130 years. In contrast to the longevity of medical defence organisations, there are all too many examples of insurer's failures and insolvencies throughout the insurance market.
  • The consultation document fails to mention the most notable example within the clinical negligence market: the surprise withdrawal in 2001 of the insurer the St Paul from the clinical negligence indemnity market. This left thousands of UK GPs and dentists without indemnity for claims notified after the policy ended. They had to make arrangements with the medical defence organisations to be able to access compensation for their patients.
  • Regulation of indemnity does not tackle the root cause of the claims crisis - legal reform is the only answer to tackle spiralling claims costs. More information at themdu.com/faircomp

Read the full response to the consultation here.

This guidance was correct at publication 25/02/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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