Memorandum by the Medical Defence Union
(OHS 05)
THE USE
OF OVERSEAS
DOCTORS IN
PROVIDING OUT-OF-HOURS
SERVICES
1. The Medical Defence Union (MDU) is the oldest
and largest of the UK's medical defence organisations (MDOs).
It is a non-profit making mutual membership organisation with
members in the UK and Ireland. In the UK it provides a wide range
of medico-legal benefits to its members who are over 50% of doctors
in hospital and primary care, and over 30% of dentists. Among
the benefits of membership, MDU members are provided with an insurance
policy providing them with indemnity for clinical negligence claims.
2. The MDU understands that the Health Committee
will hold a special evidence session on Thursday 11 March to consider
the use of overseas doctor in providing out-of-hours services
and wishes to submit evidence about clinical negligence indemnity.
EXECUTIVE SUMMARY
3. The MDU suggests that the Committee may wish
to consider provision of clinical negligence indemnity as part
of its inquiry into the provision of out-of-hours services. First,
there is no requirement for mandatory indemnity for doctors practising
in the UK. Second, it is possible currently for overseas doctors
to practise in the UK and to treat NHS patients while being indemnified
by an indemnity provider that is not based in the UK.
4. We believe that this could potentially give
rise to two problems:
(a) First, that it is possible that a doctor
from overseas could practise in the UK without adequate or appropriate
indemnity.
(b) Second, UK patients should be able to expect
that if they are treated in the NHS and something goes wrong,
they can sue in the UK, in a jurisdiction that they and their
legal and other advisers can understand. This should apply even
if the indemnity provider is based in another country as all indemnity
policies covering doctors practising in the UK should be required
to allow claims to be brought in the UK.
FACTUAL BACKGROUND
5. There is currently no statutory requirement
in operation that requires doctors who are licensed to practise
in the UK to have clinical negligence indemnity. The General Medical
Council (GMC) has powers under S44C of the Medical Act 1983 to
require doctors as a condition of registration to have `an adequate
and appropriate indemnity arrangement' for their work as a doctor.
The GMC has not yet exercised these powers and currently the only
ethical requirement upon doctors is that set out in the GMC's
guidance Good Medical Practice which says at paragraph 34: `You
must take out adequate insurance or professional indemnity cover
for any part of your practice not covered by an employer's indemnity
scheme, in your patients' interests as well as your own.' The
GMC does not define `adequate insurance or professional indemnity
cover' and nor does the Department of Health.
6. Doctors working in NHS hospitals and the
community throughout the UK (UK doctors and overseas doctors)
are indemnified through NHS indemnity for clinical negligence
claims arising from their NHS work and many of them, though not
all, seek indemnity from other providers for work they undertake
outside of their NHS contracts. Such indemnity is provided in
the form of insurance for members of the MDU, or as discretionary
indemnity through membership of the two other MDOs. A very few
doctors, usually practising in the independent sector, make direct
insurance arrangements with an insurer.
7. UK general practitioners as independent contractors
are usually required as part of their contractual requirements
to hold indemnity, though this is not always the case. The majority
are members of an MDO, but there is no way of knowing if all GPs
have indemnity.
8. Overseas doctors who provide services in
primary care in the UK are generally required through their contracts
to have indemnity in place, but there are no stipulations as to
what type of indemnity they should hold. Some of them may join
an MDO if they are going to practise in the UK for some time but
others, who also practise in other EU member states, may prefer
to hold indemnity in the state where they live and practise most.
There is nothing to prevent them from doing this.
9. There is currently a draft EU directive under
active consideration in Brussels with the aim of facilitating
cross-border healthcare. One of the provisions of this draft directive
(the proposed directive on the application of patients' rights
in cross-border healthcare), Art 5 (1) (d) & (e), covers indemnity
with the aim of ensuring that patients who travelled to another
member state and who were negligently harmed would be able to
claim and receive compensation. Currently the draft proposals
would require member states to have arrangements in place so that
patients were able to and would have the right to seek compensation
when they suffered harm and that the mechanisms would guarantee
that remedies "which are appropriate to the nature and extent
of the risk are in place for treatment provided in their territory".
It is currently accepted that this would mean that patients would
be able to use the mechanisms of the country in which they received
treatment to sue and to gain compensation. A UK patient who was
harmed would sue in the UK jurisdiction, as would any patient
who came to the UK for treatment. Similarly this would provide
that, for example, a Dutch or German doctor who treated patients
in the UK must be sued through the UK courts.
10. The MDU believes that such an arrangement
has much to commend it. If it were adopted, it would ensure that
all UK NHS patients would have equal rights to seek compensation
and access to justice in their own jurisdiction, irrespective
of whether the doctor who had negligently harmed them came from
overseas.
MDU RECOMMENDATION
11. We would like the Committee to consider
making a recommendation that, in the interests of protecting NHS
patients, any doctor practising in the UK must be covered by adequate
and appropriate indemnity. Such indemnity could be either NHS
indemnity or a contractual arrangement providing a guarantee that
negligently damaged patients will be compensated. This would ensure
that any claims arising from treatment provided to NHS patients
in the UK would have to be brought and compensation provided through
the UK clinical negligence procedure.
12. In the absence of EU approval and adoption
of the draft directive on cross-border healthcare, which would
require each member state to have such appropriate arrangements
in place, the GMC could make this a requirement of all doctors
who wish to hold a licence to practise. The GMC has had powers
to require registered doctors to hold adequate and appropriate
indemnity (which it must define) since 2006 but has not yet exercised
these powers.
Dr Christine Tomkins
Chief Executive
5 March 2010
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