The Department of Health's consultation on the implementation of the Health Care and Associated Professions (Indemnity Arrangements) Order 2013 (the Order) closed on 17 May 2013. The consultation invited interested parties to respond to the proposed implementation of Directive 2011/24 EU (pursuant to Article (2)(d)). This requires Member States in Europe to ensure that all independent healthcare professionals maintain their own liability insurance or indemnity cover in order to practise.
The Medical Professional Liability Company (MPLC) and Kennedys provided a joint response to the consultation. We stated that the requirement for healthcare professionals to maintain appropriate indemnity insurance is long overdue. There are inconsistencies in the eight statutory healthcare professional regulatory bodies in the UK.
Whilst four require their members to have insurance or indemnity cover, the other four bodies have varying specifications. It is necessary to ensure that patients harmed due to negligence are able to seek redress through compensation. It is unjust that there may be the risk of a patient not being compensated if negligently injured by an uninsured practitioner.
We also agreed with the proposed approach that such cover should be a statutory requirement of registration. A failure to obtain it would preclude an individual practitioner registering with their professional body to practise.
The joint response also proposed that guidance should be provided by the professional body in respect of adequate levels of cover for their members. This would be commensurate with their practice. Unless the appropriate level of cover is obtained, patients may be undercompensated which would be contrary to the principles of the indemnity arrangements being introduced.
The adoption of the Order requires healthcare professionals to have an indemnity arrangement in place to allow them to practise. The healthcare professional must prove to their professional body that such arrangements are appropriate to allow registration. This is to avoid the administrative burden on the professional body of ensuring that their members are covered.
The existing statutory provisions would be substituted with new provisions introducing the indemnity arrangements. Where the professional body currently has no provisions on indemnity cover, new provisions are to be introduced.
The proposed provisions empower the professional body to make rules in relation to the nature of the information they require from the healthcare professional and the timing of that information. The body can also specify the extent of the indemnity arrangements. This should mean that the relevant healthcare professional declares on registration (or renewal) their evidence of the appropriate cover in place.
In the absence of such indemnity cover, the professional body is able to remove the healthcare professional from their register/withdraw their licence to practise or take 'Fitness to Practise' action against them. Such proceedings may be appropriate where the professional has failed to honestly declare their indemnity arrangements on renewal or they have retained an inadequate level of cover to gain registration. This would also be the case if the member cancels their insurance having obtained it for the purposes of securing registration only.
Levels of cover
We have recommended that it is necessary for the healthcare professional to obtain sufficient levels of insurance/indemnity cover. This should be relevant to their duties, scope of practice and the nature and extent of the risks involved in their specialist field.
The consultation paper does not confirm that levels of minimum cover are required to practise. A practitioner may therefore in theory retain insurance to obtain registration and practise, whether or not it is adequate for the modality of their practice. This obviously undermines the effectiveness of the indemnity arrangements. The regulations should therefore go further to ensure that not only are the healthcare professionals in receipt of professional indemnity cover but that it is adequate.
The healthcare professionals should seek advice from their insurance broker or relevant professional body as to the appropriate level of insurance/indemnity cover.
The regulations could also determine a process for defining and reviewing (on a regular basis) minimum levels of indemnity cover for healthcare professionals. This should be done through an industry wide consultation with representatives from all of the major healthcare professions.
The implementation of the Order should not adversely affect those healthcare professionals who would ordinarily practise with indemnity cover. The vast majority of professionals would welcome such regulations.
However, some healthcare professionals may not easily or at all be able to obtain such cover in the insurance market. This includes the independent midwives and therefore these regulations represent a potential barrier to them practising. There are approximately 170 independent midwives.
Nevertheless, the restriction on such a group of professionals’ ability to practise should be counter balanced with the need to protect the public. Ensuring public confidence in the integrity and the standing of healthcare practitioners when patients cannot be compensated either adequately or at all must be imperative.