Compulsory insurance cover touted to replace indemnity

Government’s response to the Paterson Inquiry report

Continued from ‘Inquiry signals big change for doctors

Recommendation 10

We recommend that the Government should, as a matter of urgency, reform the current regulation of indemnity products for healthcare professionals in light of the serious shortcomings identified by the inquiry and introduce a nationwide safety net to ensure patients are not disadvantaged.

Government response – pending

In 2018, the Government launched a consultation on appropriate clinical negligence cover for regulated healthcare professionals. This sought views on whether to change legislation to ensure that all regulated healthcare professionals in the UK not covered by state indemnity hold regulated insurance, rather than discretionary indemnity.

The Government has now extended this programme to consider the issues raised by the inquiry and is committed to bringing forward proposals for reform in 2022.

Recommendation 11

We recommend that the Government should ensure that the current system of regulation and the collaboration of the regulators serves patient safety as the top priority, given the ineffectiveness of the system identified in this inquiry.

Government response – accept

System and professional regulators have an overarching statutory objective to protect, promote and maintain the health, safety and wellbeing of the public.

The healthcare regulators referenced in the inquiry (GMC, Nursing and Midwifery Council [NMC], and CQC) exist to protect patient safety and this is reflected in their new corporate strategies. They have also taken a number of actions to encourage information-sharing between organisations and to enable patients and professionals to raise concerns.

DHSC’s 2021 consultation regulating healthcare professionals, protecting the public sets out proposals that address the issues raised in the inquiry, including a proposal to place a duty to co-operate on all regulators. DHSC plans to draft legislation in relation to the GMC in 2022.

Recommendation 12a

We recommend that if, when a hospital investigates a healthcare professional’s behaviour, including the use of an HR process, any perceived risk to patient safety should result in the suspension of that healthcare professional.

Government response – do not accept

We agree that exclusions and restriction of practice can be necessary, and in some cases immediate exclusion is an appropriate response while an investigation is ongoing. 

However, we do not believe it would be fair or proportionate to impose a blanket rule to exclude practitioners in such cases. Such a step may inadvertently cause a chilling effect, dissuading healthcare professionals from raising concerns and negatively impacting patient safety.

It is vital that investigations are robust and conducted in a timely manner. Guidance has been put in place to ensure that concerns are taken seriously, appropriate action taken and that robust investigation processes are implemented, and that clarity on when to exclude a healthcare professional is provided.

Recommendation 12b

If the healthcare professional also works at another provider, any concerns about them should be communicated to that provider.

Government response – accept in principle

The Government agrees that, where patient safety is at risk, information should be shared with other providers. However, there must be an element of judgement by providers as they will be taking on responsibility to ensure that this information is appropriate and accurate. Regulators have taken key steps to make it easier for people and organisations to share information regarding patient safety risks. 

The Medical Profession (Responsible Officers) Regulations 2010 (revised in 2013), which apply to all medical practitioners, have also set out prescribed connections for sharing information regarding performance
concerns between health organisations.

Recommendation 13

In the NHS, consultants are employees and the NHS hospital is responsible for their management, and accepts liability when things go wrong. The situation is very different in the independent sector where most consultants are self-employed.

Their engagement through practising privileges is an arrangement recognised by The Care Quality Commission (CQC). However, this recognition does not appear to have resolved questions of hospitals’ or providers’ legal liability for the actions of consultants.

We recommend that the government addresses, as a matter of urgency, this gap in responsibility and liability.

Government response – accept in principle

The Government is clear that independent sector providers must take responsibility for the quality of care provided in their facilities, regardless of how the consultants are engaged.

The Medical Practitioners Assurance Framework (MPAF), published in 2019 by the Independent Healthcare Prov-ider Network (IHPN), was created to improve consistency around effective clinical governance, and to set out provider and medical practitioner responsibilities in the independent sector.

The CQC will continue to assess the strength of clinical governance in providers as part of its inspection activity, taking account of relevant guidance such as the MPAF.

As covered in our response to recommendation 10, we have set out a programme of work that will consider the case for reforms to the provision of indemnity cover. We will use this as our initial approach to dealing with the challenges faced by patients of Ian Paterson in accessing compensation.

Recommendation 14

We recommend that, when things go wrong, boards should apologise at the earliest stage of investigation and not hold back from doing so for fear of the consequences in relation to their liability.

Government response – accept

Healthcare organisations have a statutory duty of candour, which sets out specific requirements providers must follow when things go wrong with care and treatment, including providing truthful information and an apology. This duty is regulated by the CQC.

NHS Resolution has consistently advised its members to apologise when things go wrong and to provide a full and frank explanation at the earliest possible stage, irrespective of the possibility of a legal claim. 

More work is underway to ensure that this NHS Resolution guidance is promoted.

Recommendation 15

We recommend that, if the Government accepts any of the recommendations concerned, it should make arrangements to ensure that these are to be applicable across the whole of the independent sector’s workload – meaning private, insured and NHS-funded – if independent sector providers are to be able to qualify for NHS-contracted work.

Government response – do not accept – keep under review

This recommendation, if implemented, would change the way in which independent sector providers qualify for NHS contracts.

As demonstrated in our response to the other recommendations, independent sector providers are fully committed to implementing changes alongside NHS providers. 

They must already meet the same regulatory standards, as required by CQC.

We will continue to monitor the independent sector uptake of the other recommendations and we will review our position on this recommendation in 12 months’ time, setting out further steps if necessary.

Future actions

The Departement of Health and Social Care will provide an update on this work 12 months after the publication of this response. This follow-on report will update on the progress made against the ‘Implementation plan’ below.

The full Government response can be found at