Reform urged for medical defence

By Robin Stride

Calls are mounting to begin the task of planning a huge defence cover shake-up for independent practitioners.

Leaders from a range of interests in the private healthcare sector are keen to see  discretionary defence cover replaced by a much fairer system. 

Their views were aired at a digital conference attended by an audience of 200 interested parties, including consultants.

The LaingBuisson event considered three key questions:

  • Is there a growing problem of identifying where liability sits? 
  • Is there a fix? 
  • Does the sector want to take control and implement a fix?

The consensus of the conference was a ‘yes’ to all.

Stephen Collier

Meeting chairman Stephen Collier, who was an independent adviser to the Paterson inquiry and is chairman of NHS Prof­essionals, said the private sector in the UK had generally sorted out the liability question for employed consultants and for NHS caseload.

But a gap remained where a patient suffers harm and a consultant is not an employee. To whom should the patient direct themselves ? 

Some medical malpractice policies side-stepped this by writing cover where the private hospital was legally liable to pay. 

But the challenge created then was that only a law court could give a definite answer on whether in any particular circumstance the hospital was legally liable to pay. This then forced parties back into litigation.

The former BMI Hospitals boss said any resolution would need a sector-wide approach. It could wait for regulators or government to impose a resolution or it could take the initiative and design something that worked. This was the challenge the sector really faced.

Had its time

Key speaker Cathy Vickery, vice-president of legal services at HCA Healthcare UK, told the seminar that hospitals recognised this as a difficult area and wanted to do the right thing for their patients.

She added: ‘I personally think unregulated discretionary cover has had its time. 

‘I think it’s been fantastic in the past, but the instances where the provider is exercising discretion effectively to pull it are becoming more frequent and that’s often at a time when patients need it the most.’

David Hare, chief executive of the Independent Healthcare Providers Network, agreed that discretionary cover had served consultants well over the years, and much of the medical defence organisations’ work had been effective. 

Alternative needed

But he, too, believed the time had come to look at an alternative, warning: ‘If we don’t, it will be imposed upon us.’

He hoped in the next few months the various parties could be brought round the table to take things further.

Mr Hare said it would not be enough for the sector to come together and propose what it wanted to do. It would need to work collaboratively with others, including the NHS. The Govern­ment would expect that.

Discretionary cover’s differences from insurance mean it is not contractual, there is no ombudsman, and it is not regulated.

Recommendations in the Paterson Report a month before the pandemic’s first lockdown last year included a call for an urgent review of medical indemnity to prevent discretionary withdrawal of cover.

Dr Rob Hendry

From the defence body side, Dr Rob Hendry, medical director at MPS partnerships, agreed the discretionary model had worked well in the past and had given medical defence organisations (MDOs) flexibility to address some ‘unusual situations’. It had largely been used to the benefit of doctors and patients.

But he agreed the world was changing and the Government had issued discussion documents about the future of medical indemnity. 

He said he would like to see the best bits of insurance and indemnity in some way combined in an integrated approach that was to everyone’s advantage.

Asked if there was still a role for MDOs, he argued there was. They had an insurance capability and a main reason doctors joined them was for the wider protection available, including help with regulators, coroners, support if charged with criminal offences, risk management and prevention work.