Health and Social Care Bill

Memorandum submitted by the Medical Defence Union (HS 50)

In respect of clauses 9 & 10 & 185

Introduction

1. The Medical Defence Union is a mutual, non-profit making company owned by our members who are over 50% of the UK’s doctors, and 30% of dentists. Members have access to a wide range of benefits of membership including a £10 million indemnity policy for clinical negligence claims. We also provide advice and assistance with a range of medico-legal matters such as responding to complaints procedures including those that are referred to the Ombudsman.

2. Our memorandum covers two areas of importance to our members: the need for clarity about indemnity under the proposed commissioning arrangements, and the proposed extension of the Ombudsman’s powers to disclose reports.

Summary

Clauses 9 & 10

3. We believe it is a failing that the Bill does not mention the subject of indemnity in clauses 9 or 10, and that in the many documents that have been published outlining the changes consideration has not been given to the arrangements that will be need to in place to ensure patients receive compensation. The changes proposed in the Bill need to be supported by clear arrangements for indemnity that will ensure certainty of compensation for patients who are negligently damaged. We believe the Bill should be amended to provide clarity about indemnity arrangements to protect patients.

Clause 185

4. We believe clause 185 should be amended to make it clear that the criteria that the Ombudsman needs to consider when making wider disclosures are not just the appropriateness of sharing the reports or statements, but that the Ombudsman may only send a report or statement to another person if the Ombudsman can demonstrate that is necessary to do so in the public interest and that the Ombudsman considers it reasonable to do so in the circumstances.

Clauses 9 & 10

The need for clarity about indemnity

5. The current position is that, outside the indemnity provided by the NHS, doctors and dentists have to make their own indemnity arrangements for clinical negligence claims. The MDU provides insured indemnity to individual and corporate medical and dental members working in the primary care and independent sectors in order to ensure that patients receive appropriate compensation if they are negligently damaged by our members. A number of our medical members, including doctors currently indemnified by the NHS for their NHS work, are already asking us what will happen to their indemnity if they change the way they practise or the services they provide to patients in future. Doctors who want to take part in the changes proposed in the Bill need to know they will be indemnified if they do.

6. Our concerns about the lack of clarity in the Bill on indemnity are twofold: first there is no mention of clinical negligence indemnity arrangements at all, and second it does not provide for guidance about the type of arrangements that will need to be in place to ensure that patients who are negligently harmed receive compensation

7. The Bill is silent on how the arrangements for indemnity for clinical negligence will need to change, yet change they must to ensure they underpin any new arrangements for commissioning and provision of care. Clauses 9 and 10 of the Health & Social Care Bill 2011 set out the duties and powers of consortia to commission secondary care services on behalf of patients of consortia members and we would expect to see mention of indemnity in respect of these provisions. But the Bill does not specify that under the new arrangements clinical negligence claims arising from such services must be indemnified, or how patients receiving care commissioned from non-NHS providers can be certain they will be compensated.

8. We expect that under the new arrangements proposed in the Bill, responsibility for clinical negligence claims should lie with the providers and not the commissioning consortia. If this is the case, before entering into agreements with providers, GP consortia will need to be satisfied that the providers accept responsibility for compensating any patients who are negligently harmed by them. Commissioners will need to be satisfied that providers’ indemnity is adequate and appropriate to ensure patients will be properly compensated, whether through NHS indemnity or separate arrangements. If the indemnity is not provided by the NHS, commissioners will need contractual certainty that patients whose care they are commissioning will be compensated if they are negligently harmed.

9. From the point of view of providers, it must also be clear what services the NHS is prepared to indemnify, or whether doctors will need to make their own indemnity arrangements if they choose to offer services to the NHS as independent providers under the new arrangements.

10. Given the planned increase in the direct involvement of patients and representative organisations in commissioning decisions, Healthwatch England and others will almost certainly wish to be satisfied that clear and robust arrangements are in place to ensure that patients will be compensated if they are negligently damaged by the provider. We expect that GP consortia and patient and consumer representatives will need certainty about the amount and type of indemnity, and assurances that the organisation providing it, if it is not an NHS body, is a reputable insurer.

11. The standard NHS contracts and guidance refer only to appropriate insurance provided by a ‘reputable’ insurer and we believe that the requirements should be more specific. While NHS indemnity may be relied upon, there will need to be greater clarity about the indemnity and the provider. It should no longer be possible for the Department of Health to say that an arrangement is acceptable on the grounds that it has worked in the past, not least because a widening of the market may see a range of new insurance providers wanting to provide indemnity insurance to doctors. In order to protect patients, who won’t themselves buy the clinical negligence insurance upon which they might need to rely, there needs to be a new set of ground rules that apply equally to all concerned, outside NHS indemnity. There will need to be clear criteria for the types of indemnity and for providers that will be considered adequate and appropriate to protect patients. For example, we would suggest at a minimum that any indemnity provider should be authorised and regulated by the FSA, or other appropriate EU regulator, to conduct this type of business.

Proposal for amendment to clauses 9 & 10

12. We believe it is a failing that the Bill does not mention the subject of indemnity, and that in the many documents that have been published outlining the changes consideration has not been given to the arrangements that will be need to in place to ensure patients receive compensation. The changes proposed in the Bill need to be supported by clear arrangements for indemnity that will ensure certainty of compensation for patients who are negligently damaged. We believe the Bill should be amended to provide clarity about indemnity arrangements to protect patients.

Widening of the Health Service Commissioner’s powers

13. As drafted, clause 185 Disclosure of reports etc. by the Health Service Commissioner says: ‘In section 14 of the Health Service Commissioners Act 1993 (reports etc. by the Commissioner), after subsection (2H) insert- "(2I) Where the Commissioner is required by this section to send a report or statement of reasons to certain persons, the Commissioner may send the report or statement to such other persons as the Commissioner thinks appropriate.".’

14. The MDU supports the rationale behind the widening of the Ombudsman’s powers as proposed in clause 185. We believe the change is intended to enable the NHS to share learning from complaints as widely as possible so that lessons learned can feed back into practice and inform any necessary changes with the purpose of enhancing patient care and safety. In the first place it is important that such learning takes place within the body (or by the individual) that was the subject of the complaint. Even if the Ombudsman decides that it is not appropriate for her office to investigate a complaint, the body or individual who is its subject should be informed of the complaint.

15. There is also a wider interest in sharing information from complaints with other organisations that are in a position to learn from them, or that can encourage other bodies and individuals to take account of the points raised. We are sure that the intention of the Ombudsman is only to make such disclosures in circumstances where it is reasonable to do so in the public interest and in a way that respects the rights of the complainants as well as those of the subject body or individual. The clause at is stands does not, however, specify this and we believe it should because even if a report is anonymised, patients and doctors can often be identified from the case details. Patients have a right to confidentiality and equally individuals and organisations that are the subject of complaints have rights to fair procedures and to be treated fairly.

Proposal for amendment to clause 185

16. We believe clause 185 should be amended to make it clear that the criteria that the Ombudsman needs to consider when making wider disclosures are not just the appropriateness of sharing the reports or statements, but that the Ombudsman may only send a report or statement to another person if the Ombudsman can demonstrate that is necessary to do so in the public interest and that the Ombudsman considers it reasonable to do so in the circumstances.

February 2011