DENTAL ACCESS PROGRAMME INSURANCE GUIDANCE

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1 DENTAL ACCESS PROGRAMME INSURANCE GUIDANCE Beachcroft LLP 7 Park Square East Leeds LS1 2LW UK tel: +44 (0) fax: +44 (0) DX Leeds Park Square 25 February 2010

2 DENTAL ACCESS PROGRAMME INSURANCE GUIDANCE The views expressed in this guidance are based on a pragmatic approach to legal drafting and insurance positions which in some areas are flexible and open to both a narrow and a somewhat broader interpretation. This guidance should not be regarded or relied upon as a definitive statement of the law and separate legal advice should be taken where a PCT has any specific issues. 1. Overview 1.1 Under the Dentists Act 1984 (as amended) ("the Act") all dental care professionals are required to have adequate and appropriate insurance in relation to each title under which they are registered. 1.2 Under the Act there is a definition of adequate and appropriate insurance as insurance of a type and amount which the rules under this section specify as adequate and appropriate and insurance is defined as: a contract of insurance providing cover for liabilities which may be incurred in carrying out work as a dentist (or as a member of a profession complementary to dentistry ); or an arrangement made for the purpose of indemnifying a person against such liabilities. 1.3 This means that adequate and appropriate Clinical Negligence coverage currently could incorporate both insurance and discretionary indemnity routes and PCTs should therefore review the coverage proposed by contractors to ensure that they are comfortable that what is proposed is both adequate and appropriate for the contract being tendered. 1.4 The General Dental Council has been given the power to make rules under the Act to require all dentists to be covered by adequate and appropriate insurance throughout the period during which he is registered in the register. There has been a consultation exercise as to the type of insurance which should be put into place although the proposals arising from the consultation are not yet known as at the date of this guidance (September 2009). Therefore PCTs should be aware that the introduction of any new rules from the GDC will need to be reviewed in the context of the insurance position of the PCT under the Dental Access Agreement ("the Agreement"). 2. Background to the Dental Insurance Market 2.1 There is an established market of both insurance and discretionary indemnity. 2.2 The three main professional indemnity providers in the UK are: Dental Protection Limited (DPL); the Dental Defence Union (DDU); and 1

3 2.2.3 the Medical and Dental Defence Union (MDDUS). 2.3 In addition to these three providers, there are a number of other companies offering professional indemnity. 2.4 The two main professional indemnity products on offer to dental contractors could be summarised as insurance and discretionary indemnity. The main distinctions between these types of cover are that: insurance is based on a contractual right governed by the terms of the relevant policy, while discretionary indemnity is by its very nature discretionary; discretionary indemnity gives the mutual organisation the discretion to decide the circumstances in which it will provide assistance and indemnity cover to members. Under discretionary indemnity, assistance (cover) could (in theory though it would be unlikely in practice) be declined by the indemnity provider and therefore there is no automatic right for a member to be covered insurance is generally provided on a commercial basis, while discretionary indemnity would normally be provided on a not for profit basis. 2.5 This means that insurance companies within the UK would be commercial enterprises and (as providers of insurance services) would be regulated by the Financial Services Authority (FSA). The FSA sets the standards which all insurers must meet and can take action where insurers are not complying with these standards. 2.6 A discretionary indemnity is generally provided by a mutual organisation which will be owned by the members and could be expected to be run by the directors in accordance with its rules. It will look to protect its members and will not normally be operated with a view to making a profit. Insurance is on a claims-made basis, while discretionary indemnity is generally occurrence-based cover. It should however be noted that not all forms of discretionary indemnity are provided on an occurrence basis and there are also variations in the terms offered by the providers of discretionary indemnity to the Contractors so the PCT should confirm the basis of any such indemnity as part of the process of evaluating the offer from the bidder. 2.7 By way of example, an occurrence-based indemnity can (depending on the terms of the scheme) generally meet claims that arise from treatment carried out by a dentist who is a member of the indemnity scheme, regardless of when the claim is brought, without the need for any further payment to be made by the dentist after the Agreement has ended. Insurance which is on a claims-made basis only covers the dentist for the period in which the insurance policy is actually in force. In order to continue to have cover for claims which stem from the period in which the Agreement is in force, once the Agreement has ended, the dentist would need to consider the payment of an additional premium or run-off to ensure that they are protected in the future against a retrospective claim. 2

4 EXAMPLE A Dentist carried out a course of root canal treatment on a Patient in August The contract under which he was providing the primary dental services ended in January In September 2009 the Patient makes a claim against the dentist in relation to the treatment they received in (a) If the dentist had insurance cover on a claims basis and the policy ended when the dentists contract ended in 2009 then unless they have paid an additional premium or for run-off cover to cover the period of the claim in September 2009 then they would not be protected against the retrospective claim from the services provided in (b) If the dentist had coverage from a mutual with discretionary indemnity on an "occurrence" basis then the dentist should be entitled to ask for indemnity assistance for the claim in September Insurance Related Terms of the Agreement 3.1 The terms of the Agreement set out the recommended insurance requirements for Dental Access procurements under Clause 48 as well as Schedule These include an obligation on the Contractor to provide copies of the relevant cover/indemnity within 15 business days of a request and to notify the PCT of significant changes in its position. 3.3 The Contractor also has an obligation where sub-contracting clinical services to ensure that its sub-contractor holds adequate and appropriate insurance for the provision of these services (as set out in Clause 48.4). 3.4 Under Clause 48.5 there are requirements for insurance where the Contractor is delivering training as part of the Services. 3.5 In terms of Schedule 9, Part 1, the insurance requirements can incorporate cover for: Public Liability; Clinical Negligence (for DCPs and the corporate entity); Statutory Insurances; and Property All Risks (where considered appropriate ). 3.6 The level of coverage required for each of the above insurance categories can vary in each PCT Scheme. PCTs are advised to take independent insurance advice when determining the specific insurance requirements for local Agreements. 3.7 Under paragraph of Schedule 9 the Contractor is required to ensure the Insurance is placed with reputable insurers who have not been identified by the PCT as being unacceptable to the PCT. It is not anticipated that the PCT will compile a list of unacceptable insurers but rather that, in the interests of protecting the professionals, their patients and the PCTs, the minimum criteria for 3

5 reputable insurers are more clearly stated. For example these may include that the indemnifying company must be: FSA regulated to provide the type of cover; Subject to an independent statutory scheme if there is a dispute on indemnity (e.g. Financial Ombudsman Service); Subject to the Financial Services Compensation Scheme this means that the FSCS can pay compensation if a firm is unable, or unlikely to be able, to pay claims against it. 3.8 PCTs should note that Discretionary indemnity would not necessarily be regulated by the FSA so the factors in paragraph to would not apply to this type of cover. Discretionary indemnity does not provide these protections for patients, professionals and the PCTs. 4. PCT Considerations PCTs should consider requiring a regulated insured indemnity from the Contractor where the Contractor is a corporate body or LLP. 4.1 The following insurance requirements should to be considered by PCTs before finalising the Agreement: Public Liability Indemnity Limit (currently set as 5m per claim and unlimited in the aggregate) This type of insurance should cover the dentist if a third party is accidentally injured by the dentist or by their business. It should also cover the dentist if they damage third party property while on business For example if a member of the public enters the dentists premises and trips up on a loose floorboard, the public liability insurance would in theory cover the dentist's business if there was a claim for any injuries sustained as a result It would not include claims from the dentist's own employees as this would fall under Employers Liability claims. Clinical Negligence Sum insured ( 5m one claim, 10m in the aggregate) Please see Annex A for a more detailed explanation as to the requirement for Clinical Negligence coverage for both individuals and the corporate entity (if applicable) The PCT will also have to consider the suitability of any discretionary indemnity (if offered by bidders). 4

6 Statutory Insurances Employers liability limit of indemnity ( 5m for any one event) This type of insurance should cover the cost of compensation for any employees injuries or illness arising out of their employment Employers liability insurance is compulsory under law so a dentist could be fined if they have employees and do not hold a policy which complies with the law However, claims relating to motor accidents that occur while employees are working for the dentist may be covered separately by their motor insurance. Property All risks The requirement for this cover will depend upon the specific property solution being adopted by the Contractor. For example if the Contractor is taking space within a PCT building and the PCT has already fully insured the building then it may not be necessary for the dentist to put further insurance in place This type of insurance (if required) should cover reinstatement as new cost on buildings, fixtures, fittings and contents in relation to damage to property used for or in connection with the ownership, maintenance and operation of the Practice Premises and provision of the Services. 4.2 Annex B contains a table summarising the different types of cover which may be required. 5. Insurance Brokers Letter 5.1 Part 2, Schedule 9 is a template insurance brokers letter. This letter must be completed by the contractor's insurance broker and/or recognised dental defence organisation and supplied to the PCT, confirming: 6. Expert Advice that the required insurance cover, as detailed in Part 1 Schedule 9, is in place; all premiums for the insurances have been paid for by the contractor; and the insurance broker will notify the PCT of any change to the above circumstances or of termination of their appointment as the contractor's insurance brokers. It is recommended that expert advice be sought on insurance matters by PCTs from insurance advisers with relevant experience, in the event of any queries on these provisions of the Agreement. 5

7 Annex A - Clinical Negligence Clinical Negligence coverage may be required to be held by different types of entity corporate bodies and unincorporated bodies (individuals, partnerships) General Points: Insurance v discretion There is a fundamental difference between insurance and discretionary indemnity. Insurance provides a binding contractual obligation and certainty. Discretionary indemnity may provide assistance but it is important to remember that there is no guarantee that assistance will be provided as the dentist or dental care professional only has the right to seek assistance, and to have that request considered, but not a right to receive it. There is no legal right to receive cover in a discretionary arrangement and nor can there be or else the indemnifier would risk trading illegally as an unregulated insurer. Where discretionary indemnity is described in this guidance or offered by a Contractor the PCT should be clear of this difference. It should also be noted that not all forms of discretionary indemnity are necessarily provided on an occurrence basis. 1. Individual Clinical Negligence (e.g. individual dentists holding their own personal insurance/indemnity) 1.2 Requirement This is required in all cases for dentists and dental care professionals providing clinical services under the Agreement All dentists and dental care professionals need this and must supply it to the PCT. The host PCT will check that the dentists and dental care professionals have adequate and appropriate clinical negligence coverage. 1.3 Availability 1.4 Claims This type of coverage is widely available (e.g. Dental Protection Limited (DPL), the Dental Defence Union (DDU) and the Medical and Dental Defence Union (MDDUS) and a number of other companies offer this coverage) Coverage will either be offered on an occurrence basis or a claims made basis. The difference between these basis of coverage are explained in paragraphs 2.6 and 2.7 of the main insurance guidance document Where Individual clinical negligence coverage is provided on an occurrence basis the dentist may be covered if they were a member at the time the incident occurred/treatment took place (not at the time when the claim is notified to the dentist/indemnity organisation). If this is not the case then the PCT should consider the requirement for run-off coverage as set out below If this coverage is in the form of a discretionary indemnity then the Board of the indemnifying organisation will determine the amount of cover provided. The PCT 6

8 1.5 'Run-off' should request information from the prospective contractor to satisfy itself that this coverage will meet the requirement for insurance which is "adequate and appropriate" for the Agreement and note the general points above If the policy is provided on an 'occurrence ' basis this should mean that (subject to its terms and the general point above on discretionary indemnity coverage) the dentist or dental care professional is covered against claims for an event that occurred while the membership was in place - e.g. a claim could be made two years after the membership expired for an event that occurred during the period of coverage Insurance companies also offer a claims-made basis of cover to dental professionals. This means that a registrant is covered for claims if they are a policy holder of the insurance company when the claim is made. Therefore, this would leave a requirement for run-off cover to be obtained after expiry/termination of the cover Insurance companies do offer run-off cover to policy holders (usually for up to 10 years) to cover them for claims that might arise in the future Where there is a requirement for additional run-off coverage this should only be needed at the time the risk attaches (i.e. when the contractor/dentists cease to provide the Services under the Agreement). It does not need to be in place at the outset of the Agreement. There should therefore in these circumstances be an agreement that run off cover will be purchased for a minimum of 3 years at the cessation of the Service (as some insurance companies only allow run-off cover to be purchased in blocks of 3 year periods). 1.6 Availability of 'Run-off' coverage Available as standard on most individual Clinical Negligence policies Insurance companies do also offer run-off cover to claims-made basis policy holders (usually for up to 10 years), to cover them for claims that might arise in the future Bidders should be specifically told that it is their responsibility to cost the provision of compliant insurance cover and include it in their bid cost. 2. Corporate Clinical Negligence cover 2.1 Requirement Corporate Clinical Negligence cover is required where the Contractor is a separate legal entity to the medical practitioners (e.g. a dental body corporate as a limited company) in addition to cover that individuals employed by the corporate entity (such as a limited company) may hold. However some dental defence organisations may recognise the separate body and include this within the cover they offer to the dentists and if this is the case then there would not be a requirement for separate cover (if this cover is satisfactory to the PCT) The legal position for a company differs to a partnership or individuals. A company is a separate legal entity so in the event of a clinical negligence claim, 7

9 the company as well as the individual could be sued. Where the dentist or dental care professional is employed by a company and where the patient referral is organised through the company, a claim may be made against the company itself instead of, or as well as, the individual involved in the treatment An example of the type of claim that may be made against the Corporate Clinical Negligence cover after the Agreement expires includes cases of organisational or systematic failure leading to clinical negligence (where a member of staff performs negligently due to the poor management or systems). 2.2 Availability 2.3 Claims Corporate Clinical Negligence cover is widely available from a range of insurance providers. Corporate Clinical Negligence cover is predominantly provided on a 'claims made' basis. This means that claims can only be made against a Corporate Clinical Negligence insurance policy if the insurance policy is in force at the time when the claim is made. In order to obtain cover for claims arising once the Agreement has ended the Corporate Body would need to consider the payment of an additional premium or run-off cover to ensure that they are protected going forward against a retrospective claim. 2.4 'Run-off' coverage The Agreement requires that the Contractor holds Corporate Clinical Negligence Cover/Indemnity after termination/expiry of the Agreement ('Run-off' cover). This requirement is put in place to transfer risk from the PCT to the Contractor should a claim be made after the Agreement is terminated/expired As a minimum, it is expected that PCTs should require the Contractor to have insurance cover for at least the statutory limitation period for clinical negligence claims against the corporate body (see paragraph 3 below for more detail). 2.5 Availability of 'Run-off' cover Corporate Clinical Negligence cover for the period after termination/expiry of the Agreement ('Run-off) is widely available (mostly through commercial providers) although likely only to be offered for limited durations of time (for example three or five years) after which period it is the contractor's responsibility to renew the cover for the period which the PCT designates. 2.6 General Notes In the event that a Contractor does not continue to maintain appropriate Run-off Clinical Negligence coverage, the risk of a claim being made can rest with the PCT unless the claim can be attributable to an individual. 3. Limitations on claims (applicable to both corporate and individual cover) There are legal limitations on how long after an event has occurred that a claim can be made. For claims involving personal injury a person has three years, from their 'date of knowledge' to bring a claim. The three year period will usually commence when the injury is sustained, but it may be delayed due to lack of symptoms, knowledge, disability 8

10 or deliberate concealment. The court can also exercise its power to extend the three year period and a person without capacity could bring a claim a significant period after the event. If a child is injured he/she will be able to issue a claim up to the age of 21 (three years from reaching the age of majority). Each case of Clinical Negligence will need to be looked at on its facts and the PCT should take specific advice on this point in respect of any possible claim. 9

11 Annex B TYPE OF CONTRACTOR All Contractors TYPE OF COVER REQUIRED Public Liability Employers Liability Property And Title Risks POLICY HOLDER "RUN OFF" Expected standard areas Legal entity Not Required for these types of or cover Contractor (if not incorporated e.g. joint policy held by individual partners) INSURANCE PROVIDERS Wide range of Commercial providers Where the Contractor consists of individuals - sole trader(s) - partners (not incorporated) Clinical Negligence All individual practitioners Cover is generally provided on an "events occurred" basis (i.e. it will cover an event which occurred during the period of cover, even if the claim is made afterwards). If this is the case then the PCT should consider whether this coverage will be sufficient to cover the "run off" period. A range of organisations offer this cover for dental practitioners including: - MDU/DDU - MDDUS - MPS / DPL Where the Contractor is a separate legal entity For example: - Limited Company - Clinical Negligence Corporate Medical Malpractice Cover, in addition to individual cover as set out above (unless the Contractors cover already incorporates cover for the corporate entity). Cover for separate legal entity Cover is in the name of the legal entity. It covers the company/entity where it is the subject of a claim (i.e. where the company entity employs the dentist). Cover is generally provided on a "claims made" basis (i.e. claim can only be made while policy is live). Depending on the terms of the policy, additional "run off" cover may be required for a period. This cover is available in the marketplace from organisations such as the MDU/DDU and commercial insurers. 1

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