DDU 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 Dental Defence Union (DDU).

The DDU made the comments in response to a consultation on clinical negligence cover. The consultations 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 DDU explains there is no need for such a radical upheaval, which would increase costs of indemnity very substantially for all dental professionals, 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 harmed.

John Makin, head of the DDU stated:

'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.

'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 of the claim. For example, in 2018 we assisted with a number of cases where the initial incident dates were in the 1990s and early 2000s. Additionally, over a 30 year career, a dentist might expect to face three clinical negligence claims.

'In the past, we have provided our members with insurance policies as well as discretionary indemnity 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 dental professionals need to meet claims which can arise many years after the clinical event.'

In the consultation, the DDU explains:

  • Making dental professionals 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 dental professionals' ability and/or willingness to undertake such work, to the detriment of everyone.
  • The DDU is part of the world's first medical defence organisation, defending members for over 130 years. In contrast to the longevity of medical defence organisations, there are all too many examples of insurers' 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 doctors and dentists without indemnity for claims notified after the policy ended. They had to make arrangements with the dental defence organisations to be able to access compensation for their patients.
  • Dentists, including those providing services to NHS patients, will have to absorb the additional costs of insurance themselves. This may cause difficulties in terms of recruitment and retention if the government does nothing effective to address claims inflation and their remuneration continues not to keep pace with it. For example, if NHS dentists could not afford the ever-increasing costs of insurance, they might find themselves in a position where they could not afford to pay for indemnity insurance and/or for run-off cover when they left practice.
  • Regulation of indemnity does not tackle the increasing cost of claims - legal reform is the only answer to tackling these costs. For more information visit themdu.com/faircomp

Read the full response to the consultation here.

This guidance was correct at publication 28/02/2019. 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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