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Professional indemnity insurance for healthcare professionals

Sarah Ellson
11/10/2013
The Health Care and Associated Professions (Indemnity Arrangements) Order 2013 ("the Indemnity Arrangements Order")  is due to implement Article 4(2)(d) of the European Union Directive 2011/24/EU on The Health Care and Associated Professions (Indemnity Arrangements) Order 2013 ("the Indemnity Arrangements Order")  is due to implement Article 4(2)(d) of the European Union Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare (the Directive).

In plain English, one of the key provisions of this EU Directive requires the UK to transpose into domestic law, arrangements that ensure all registered healthcare professional have indemnity insurance cover, or a guarantee or similar arrangement, that will allow any individual harmed due to their negligence to seek redress through compensation. Prior to this, although many healthcare professionals throughout the UK and EU would have been insured, either through their employer or personally, it was not a universal legal requirement.

The EU directive intended that the domestic legislation should be in place by 25 October 2013 but it now seems likely that, despite some forward planning, the UK's Indemnity Arrangements Order may not quite be ready in time.

An Independent Review Group in the UK concluded in 2010 that requiring healthcare professionals to have insurance or indemnity cover in place as a condition of their registration was the most cost effective and efficient means of achieving the policy objective.  The Department of Health's consultation ran from February to May 2013 and the regulatory bodies and professional organisations have been highlighting the issue for some months now.  The draft order is available here and amends the governing primary legislation for the UK Healthcare regulators.  Codes are being amended and consultation with registrants has been ongoing.

The NMC is currently indicating on its website that "the UK legislation is currently being finalised and will be subject to debate in both the House of Commons and the House of Lords, the Scottish Parliamentary procedures and approval by the Privy Council. The UK legislation is therefore unlikely to be in place before February 2014."

Once it comes into force the requirement for insurance will be a legal one, but in the meantime many registrants have been subject to this requirement under their Code of Conduct.  In the case of Black v General Dental Council [2013] CSIH 39, the GDC's Professional Conduct Committee had erased Mr Black noting "The committee is in no doubt that the GDC has been clear in its guidance since November 1997 that membership of a defence organisation or indemnity insurance is obligatory. The committee is satisfied that it is a mandatory ethical requirement and that a majority of the profession would find such a lack of membership or indemnity insurance deplorable. The committee finds that you treated patients while disregarding the GDC standards on this point. The committee finds that your actions amounted to misconduct."  The Inner House of the Court of Session agreed and found the PCC had been correct to be concerned about the public interest and the damage that could be done to the reputation to the profession where it was found that professionals were working without appropriate and adequate insurance.

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