2.1 advise Council on the review of professional insurance and indemnity for midwives (paragraph 15).

Transcription

1 Item 8 M/10/05 March 10 Midwifery Committee Professional insurance and indemnity review For decision Issue 1 The NMC has been requested by the chair of the Government s review panel on professional insurance and indemnity (PII) to review its current position on PII for nurses and midwives. Recommendation 2 The committee is recommended to: Annexes 2.1 advise Council on the review of professional insurance and indemnity for midwives (paragraph 15). 3 The following annexes are attached to this paper: 3.1 Annexe 1 Council seminar paper on professional insurance and indemnity 3.2 Annexe 2 Summary of the implementation of PII requirement by other healthcare professional regulators Further information 4 If you require clarification about any point in the paper or would like further information please contact the author and director named below. Christina. McKenzie christina.mckenzie@nmc-uk.org Page 1 of 18

2 Background 5 The UK government has been concerned about the impact of a small number of cases where uninsured professionals have been subject to a claim for negligence and the plaintiff was left with no means of redress. As a result, in 2005 the Government indicated its intent to make PII mandatory for all healthcare professionals. 6 The NMC commenced scoping of a review of its current position relating to PII in early 2009 and the current Council received an information paper (Annexe 1) to assist with an initial seminar discussion on 7 May At this time there were a number of significant concerns raised by the professional organisations representing nurses and midwives to the Department of Health. These resulted in a Government review of whether PII tied to registration was cost effective and appropriate for all health care professionals. At request of the Department of Health (DH) all healthcare regulators were asked to suspend work relating to PII until the review had reported in Spring/Summer The NMC s current position within the Code is that: The NMC recommends that a registered nurse, midwife or specialist community public health nurse, in advising, treating and caring for patients/clients, has professional indemnity insurance. This is in the interests of clients, patients and registrants in the event of claims of professional negligence. Whilst employers have vicarious liability for the negligent acts and /or omissions of their employees, such cover does not normally extend to activities undertaken outside the registrant s employment. Independent practice would not be covered by vicarious liability. It is the individual registrant s responsibility to establish their insurance status and take appropriate action In situations where an employer does not have vicarious liability, the NMC recommends that registrants obtain adequate professional indemnity insurance. If unable to secure professional indemnity. a registrant will need to demonstrate that all their clients/patients are fully informed of this fact and the implications this might have in the event of a claim for professional negligence. Discussion 9 The Government review of PII linked to registration for all healthcare professionals is underway and the NMC is represented on the review panel by the Head of Midwifery (HOM) who is the sponsor for the work relating to PII for nurses and midwives. The panel is due to report to the Secretary of State in the summer of As part of this work the panel has commissioned research to look at the impact of PII on the public s ability to gain redress as a result of negligence on the part of a healthcare professional. The panel is also considering five areas: 10.1 Is it cost effective and proportionate to require PII to be linked with registration? 10.2 What steps can be taken to keep costs down for registrants and regulators should PII be linked with registration? Page 2 of 18

3 10.3 What are the other drivers such as the role of systems regulators for mandatory PII? 10.4 What do we understand by adequate and appropriate? 10.5 Is mandatory PII tied to registration appropriate in all circumstances or are there other approaches that regulators might rely on? 11 At the present time only three of the nine healthcare regulators have put systems in place that link PII with registration. Five others have the legislation in place to do so but have not implemented it. One, the NMC, has no legislation in place as yet (Annexe 2). 12 As part of the review the Chief Executive (CEO), Head of Midwifery and lead midwifery adviser met with the chair of the review panel on the 22 February 2010 to discuss the NMC s position and potential implications should PII become a requirement linked to registration for all healthcare professions. 13 The chair of the review panel has requested that the NMC recommence its work to review its position on PII. 14 It is likely that the review panel will take the view that it is right that all healthcare professionals must hold PII to enable the public to seek redress from professionals when things have gone wrong. As the regulator for nurses and midwives we need to be proactive in enabling Council to review its position in the light of public interest to see if it continues to ensure the health and wellbeing of patients and the public using the services of nurses and midwives. 15 Recommendation: the Committee to advise Council on the review of professional insurance and indemnity for midwives. 16 Scoping of a project to review our position on PII will recommence to enable us to reconsider our current position on PII. 17 There is a risk of reputational damage to the NMC should we take this action as we have previously agreed with the DH and the professional bodies that we would not recommence this review until after the panel had reported. This will require careful handling and communication to mitigate. 18 A similar request to commence review of position was also made to the CEO of the Health Professions Council (HPC). This has been agreed to as the last debate the HPC had on this subject was when it s Council was in shadow form. The HPC are also keen that all regulators agree the same information about PII to inform their registrants. Resource implications 19 This will assessed as part of the be project scoping work. Equality and diversity implications 20 This will be done as part of the project scoping work. Page 3 of 18

4 Stakeholder engagement 21 We will need a careful and detailed engagement strategy and planning for this will be included in the scoping of this work. Page 4 of 18

5 Annexe 1 M/10/05 Council Seminar 7 May 2009 Professional insurance and indemnity For information Issue 1 This paper informs Council about professional indemnity insurance (PII). It provides the background and context of PII, the current position taken by Council, and the implications for nurses, midwives and the public. It also provides a summary of the current position of other healthcare professional regulators in implementing statutory PII. Council is invited to discuss the contents of this paper during the seminar. Recommendation 2 None. Annexes 3 The following annexes are attached to this paper. 3.1 Annexe 1 Implementation of PII requirement by other healthcare professional regulators 3.2 Annexe 2 - Summary of the implementation of PII requirement by other healthcare professional regulators Further information 4 If you require clarification about any point in the paper or would like further information please contact the author or the Director named below : Author: Carmel Lloyd Author: Jenny Newton Director: Christina McKenzie carmel.lloyd@nmc-uk.org jenny.newton@nmc-uk.org christina.mckenzie@nmc-uk.org Page 5 of 18

6 Background 5 This paper informs Council about professional indemnity insurance (PII). It provides the background and context of PII, the current position taken by Council, and the implications for nurses, midwives and the public. It also provides a summary of the current position of other healthcare professional regulators in implementing statutory PII. Previous consideration by the NMC Council or UKCC 6 The PII issue first came to the fore when the UKCC was engaged in reviewing the Code of Professional Conduct and working with other healthcare professional regulators in identifying a set of common professional values. At that time the UKCC was the only healthcare professional regulator which did not include a recommendation as to PII in its Code or other guidance to registrants. 7 An extensive consultation on PII was then undertaken by the NMC in Responses were received from a wide range of stakeholders including health care organisations, the professional bodies and unions, registrants and members of the public. Based on the outcome of the consultation and the legal advice (see below) the Council decided not to make PII a condition of registration or practice. 8 The NMC published its views regarding PII on the website 1 and in NMC circulars 11/2004 (May 2004) 2 and 22/2004 (July 2004) 3. A statement was also included in section 9, indemnity insurance of the NMC code of professional conduct: standards for conduct, performance and ethics (2004). 9 The Code 4 underwent an extensive review in 2008 and following legal advice the statement relating to PII was amended and currently states that: The NMC recommends that a registered nurse, midwife or specialist community public health nurse in advising, treating and caring for patients/clients, has professional indemnity insurance. This is in the interest of clients, patients and registrants in the event of claims of professional negligence. Whilst employers have vicarious liability for the negligent acts and/or omissions of their employees, such cover does not normally extend to activities undertaken outside the registrant s employment. Independent practice would not be covered by vicarious liability. It is the individual registrant s responsibility to establish insurance status and take appropriate action. 1 Indemnity Insurance September 2002 Summary 2 Guidance on indemnity insurance for Midwives and Nurses 3 New NMC register: Addendum to the Code of professional conduct 4 The Code Standards of conduct, performance and ethics for nurses and midwives Page 6 of 18

7 In situations where the employer does not have vicarious liability, the NMC recommends that registrants obtain adequate professional indemnity insurance. If unable to secure professional indemnity insurance, a registrant will need to demonstrate that all their clients/patients are fully informed of this fact and the implications this might have in the event of a claim for professional negligence. 10 In 2008 the Council for Healthcare Regulatory Excellence (CHRE) Special report to the Minister of State for Health Services on the Nursing and Midwifery Council (NMC) 5 stated that the ongoing position of the Council not to require midwives to demonstrate that they are covered by PII as a condition of regulation was cited as an example of how decisions have sometimes been influenced by the interests of professional rather than public interest ( , p14). 11 In the private session of the 3 July 2008 Council meeting, the Council noted the reference to PII made in the CHRE report and although it was not required as a recommendation it was agreed that a review of the NMC s position on indemnity insurance would be considered at a future meeting. The legal position 12 Legal advice obtained when the Council made a decision in 2002 to recommend that registrants have PII is based on the following: 12.1 A QC advised that there appears to be no specific duty on the Council, through the Nursing and Midwifery Order 2001 to regulate in the area of PII nor to impose it as a requirement or condition of renewal or registration for nurses and midwives. However, his opinion was that as a responsible regulator charged with acting in the public interest, with the declared objectives of promoting the interests of individual patients and clients, and upholding the good standing and reputation of the profession, the NMC should impose a PII requirement on registrants The Council s solicitors agreed that there is no power under the Nursing and Midwifery Order 2001 to impose a PII requirement as a condition of registration or renewal or registration, whether for UK or EU registrants. It advised that there are sufficient powers under Article 21(1) of the Order to include a PII requirement in the Code of professional conduct. However, it is possible that a decision to impose a PII requirement through a provision in the Code could be subject to a legal challenge and be judicially reviewed. In that event, the court would look at the purpose for which the Article 21(1) power was being exercised, the reasonableness of the decision and the fairness of the procedures leading up to the decision. It is possible that if the decision was found to be unfair or the consultation process was considered inadequate that the provisions of the Human Rights Act would be invoked. 5 Special report to the Minister of State for Health Services on the Nursing and Midwifery Council Page 7 of 18

8 Development of Government and EU policy 13 It is generally considered to be an aspect of public protection that people receiving health care should be compensated for harm caused in treatment received from a health care professional found to be negligent. 14 In November 1998, following cases where patients had been unable to claim compensation after mistreatment from uninsured clinicians, the Government announced that it was to require all doctors and dentists to be fully insured. It proposed introducing legislation making professional indemnity cover a statutory requirement for all of the independent contractor professions, and their clinical staff. The legislation was to apply initially to doctors and dentists only, with reserve powers held for pharmacists and opticians The UK Government has been concerned about the impact of a small number of cases where uninsured professionals have been subject to a claim for negligence and the plaintiff was left with no means of redress. As of 2005, the Government indicated its intention to make PII for health professionals a mandatory requirement. Both The regulation of the non-medical healthcare professions 7 (2006) and Trust, Assurance and Safety - The Regulation of Health Professionals in the 21st Century 8 (2007) include reference to...in response to a Government initiative, indemnity insurance is also becoming a requirement. 16 The Department of Health (England) has started a programme to implement PII as a statutory requirement for all regulated professionals as their legislative programme allows. To date doctors, osteopaths, chiropractors, opticians and dentists have Section 60 orders in place to make rules to require their registrants to be covered by adequate and appropriate insurance throughout the period of registration. 17 The DH has indicated that a consultation on The Nursing and Midwifery (Indemnity Arrangements) Draft Order will take place in the very near future. Professional Indemnity Insurance 18 There are two main types of insurance available for health care professionals in the UK professional insurance and discretionary indemnity. The key distinctions between insurance and discretionary indemnity are the following: Contract v discretionary payment Commercial v not for profit Claims-based v occurrence-based 6 All doctors and dentists to be required to have full insurance The regulation of the non-medical healthcare professions: a review by the Department of Health H_ Trust, assurance and safety the regulation of health professionals in the 21 st century - H_ Page 8 of 18

9 Contract v discretionary payment 19 Insurance is based on a contract therefore the terms and conditions of the contract dictate what is covered by the insurer. In addition the patient has rights to pursue the insurer through the Third Parties (Rights Against Insurers) Act 1930 if the insured has or is about to become bankrupt. 20 Discretionary indemnifiers are often mutual societies e.g. the Medical Protection Society. Directors are given discretion to decide when to provide assistance and indemnity cover to members. It is not an automatic right for a member to receive assistance and assistance can be declined. Commercial v not for profit 21 All insurance companies in the UK are commercial enterprises and are regulated by the Financial Services Authority (FSA). The FSA provides standards for insurers and can take action against insurance companies that do not meet those standards. 22 Discretionary indemnifiers such as mutuals are not for profit organisations. They are owned by their members and are run by a Board of Directors under the Companies Act They are not regulated by the FSA, the Board of Directors must follow the Memorandum and Articles of Association in determining whether to assist a member or not. The purpose of the organisation is to protect the interests of members, and thereby the reputation of the profession it protects. Claims-based v occurrence-based 23 Insurance companies cover a healthcare professional for claims if they are a policy holder of the insurance company when the claim is made. They also offer run-off cover to their policy holders (usually up to 10 years) to cover them when they retire for claims that might arise in the future. 24 Discretionary indemnifiers offer occurrence-based cover. This relates to whether the healthcare professional was a member at the time the incident occurred/treatment has taken place, not when the claim in notified to the healthcare professional/indemnity organisation. There is no pre-set limit set on how much assistance can be provided as the Board of the organisation determines the amount of cover provided. NHS Indemnity 25 An alternative to PII is the cover provided by the NHS. NHS indemnity consists of risk- pooling arrangements that provide indemnity cover for NHS bodies through the NHS Litigation Authority 9. In England this is managed by the Clinical Negligence Scheme for Trusts (CNST), in Wales by the Welsh Risk Pool, the Northern Ireland Office runs a risk pooling scheme and in Scotland this is dealt 9 Submission to the Health Committee Inquiry into Patient Safety September Page 9 of 18

10 with by the Clinical Negligence and Other Risks Scheme (CNORIS). Up until recently this scheme has only been available to NHS providers of NHS care but new powers within the Health & Social Care Act 2008 will open up membership of the CNST to non-nhs providers of NHS care. 26 NHS indemnity identifies that NHS bodies are legally liable for the negligent acts and omissions of their employees, this applies if the negligent health care professional was : Working under a contract of employment (as opposed to a contract for services) and negligence occurred in the course of that employment; or Not working under contract or employment but was contracted to an NHS body to provide services to a person to whom the NHS body owed a duty of care: or Neither of the above but otherwise owed a duty of care to the persons injured. In these circumstances the amount of cover provided is not limited and is not dependent on how large the claim is. 27 NHS indemnity does not cover: Harm resulting from drugs or equipment which were faulty, unless there was a question whether the healthcare professional knew or could reasonably be expected to know about the fault but continued to use the drug or equipment; Patient harm caused when no-one acted negligently although in exceptional circumstances the NHS body could make an ex-gratia payment; Healthcare professionals who are self-employed; Good Samaritan acts; Defence costs of staff involved in disciplinary proceedings with statutory bodies such as the NMC. Practitioners are responsible for taking out their own cover for this eventuality and to cover Good Samaritan acts 28 NHS indemnity is to an extent discretionary as it will not necessarily cover: Where a health care professional employed by the NHS/Trust has worked outside of the NHS/Trust policy Where a health care professional employed by the NHS/Trust provides care in a setting not approved by the NHS/Trust. Examples of where this may arise is when a midwife is required to provide intrapartum care in a setting of the woman s choice e.g home/water but the choice is considered to be too high risk either because of the setting e.g houseboat on the river or pregnancyrelated condition e.g. birthing twins at home. 29 The number of claims reported to the NHS Litigation Authority (NHSLA) under CNST in England has remained relatively static over the last five years, despite the alleged compensation culture, recurrent reconfiguration of services, commercial encouragement of those injured in accidents to claim, and the growing complexity of treatment and increased levels of activity within the NHS. However, the cost of litigation is ever increasing leading to a 56% increase in the last five years. Page 10 of 18

11 30 Claims arising from obstetrics and gynaecology are responsible for 51% of the value and 21% of the claims. The high value is due to the cost of claims for babies born with cerebral palsy as a result of negligent care. These settle for an average of around 4 million each but can be more depending on the extent of life long care required. This compares with surgery with 20% of the value but 40% of the claims with an average settlement of 1.5 million. 31 Given the high cost of claims to the NHS litigation authority there is inference made in the literature that once the statutory requirement for all healthcare professionals to have PII is in place the current system of NHS indemnity may be reviewed. PII for nurses 32 Normally, nurses gain PII through their membership of a professional union, such as the Royal College of Nursing 10 (RCN) or Unison, though their limits per claim differ considerably (e.g. RCN 3 million; Unison 1million). Other organisations such as The Medical Defence Union (MDU) also provide cover for nurses. 33 Using the RCN as an example, their cover for nurses includes: Clinical negligence and public liability when undertaking a health and social care service acceptable to the RCN. Cover is limited to claims where the alleged negligence has caused personal injury or damage to property. Professional indemnity (legal liability for financial loss) in respect of negligence of nurse expert witnesses and occupational health nurses. 34 It excludes cover if: They engage in midwifery direct with a third party for a fee (although antenatal, post-natal care and parenting education are covered) They are working on their own account (whether as sole proprietor, partner or behind a limited company) and also employing or otherwise engaging with other health workers who are not RCN members (including partners) but it does cover them if they do not employ others. They will not be covered if they are entering into a partnership with a GP or any other health care practitioner who is not an RCN member. They are resident or working in the USA or Canada, or a claim arises in either country Any loss or claim arising directly or indirectly from Hepatitis or HIV infection 35 Self-employed nurses are increasingly finding it difficult to gain PII. Self-employed nurses who do manage to gain PII are finding that the premiums required by the insurance providers are increasing. 10 RCN insurance policy details Page 11 of 18

12 PII for midwives 36 All full members of the Royal College of Midwives (RCM) who are registered appropriately with the NMC are covered by the RCM medical malpractice insurance in connection with employment as a midwife and as a nurse if so qualified, (whether full, part time or occasional) - on the condition that the employer accepts liability for the actions of their employees. 11 As the vast majority of midwives are employed by the NHS, they fulfil this criterion. This will also apply to most other midwives in employment, including the private sector, as employers have a legal responsibility for actions undertaken on their behalf. This includes bank midwives, bank nurses, practice nurses, health visitors and midwifery teachers. The RCM would always advise individuals to check their insurance status with their employer. 37 The policy covers liability for damages awarded for accidental injury, death or illness, alleged to have been caused by malpractice in the provision of professional services, and for the loss or damage to property alleged to have been caused in connection with professional services. However, cover only extends to the specific nursing and health visiting duties that they are employed to undertake. It does not cover other work that they might do, which is not midwifery or nursing practice, such as acting as an expert witness, undertaking social science research etc. 38 The current limit of insurance is 3 million for all claims made against any one individual member. This is the case even where a claim is consequent upon or attributable to one source or original cause and there is more than one member involved, a maximum limit of 3 million will apply to the claim. The policy is placed on a "claims made" basis. This means that all claims will be subject to the policy limit, terms and conditions applicable at the time of notification of the claim. 39 The College's policy does not cover independent, self employed or private midwives or midwives working for any employer who declines to accept financial and legal responsibility for the care given on its behalf. This restriction also applies to those working as nurses in similar circumstances. 40 Although the Royal College of Midwives has previously provided an indemnity for self-employed midwives, it withdrew insurance cover in 1994 because of the cost. While a minority of insurers offered cover post 1994, the premiums rose to 15,000 per midwife per year. The last insurance provider for self-employed midwives withdrew from the market approximately five years ago as a result of the small number of midwives contributing to the indemnity pot. The cost of an award for a damaged baby would be large and not covered by the money collected through the insurance system. Midwives are the only healthcare professional unable to secure professional indemnity insurance within the private sector insurance market in the UK. 41 Self-employed midwives who are members of the Independent Midwives Association (now Independent Midwives UK) are working to set up a midwifery 11 RCM Medical malpractice insurance Page 12 of 18

13 services social enterprise. This will enable primary care trusts to commission for their services and through this system, under the Health and Social Care Act 2008 arrangements, would be eligible to be covered by NHS indemnity. Implications for the safety of the public 42 The legislation that has been put in place to make professional insurance a condition registration makes it clear that this measure does not make a significant contribution to improving standards or professional conduct or reducing the likelihood of harm, as evidenced by the NHSLA. It does however mean that if the patient, or a representative, seeks redress in such situations, there should be funding available to cover any court judgment. 43 In situations where the NHS/Trust is unable to provide a service as the risk if anything goes wrong, is too high leaves patients/women in a extremely vulnerable position. As an example, women cannot be forced to give birth in a hospital and there are often very good reasons as to why they make this choice. If they are not supported in their choice they will opt-out of NHS care. Currently they either employ an independent/self-employed midwife (who carry no PII) or give birth unassisted. 44 These women are often bordering on the high-risk category and are prepared to accept greater responsibility for the management of their own pregnancy and birth. A birth in the place of their choosing takes precedence over concerns for: their own health the consequences of any harm that may arise if the birth is unattended the consequences of any harm that may arise from the negligence of the midwife whether the midwife has PII or not 45 To forego antenatal care and give birth unattended by a midwife or a medical practitioner present is life-threatening to both the mother and baby. This is evidenced by the Confidential Enquiry into Maternal and Child Health 12 and is a significant factor in the high level of maternal mortality in the developing world. Position taken on the implementation of PII buy other health professional regulators 46 Currently, doctors, osteopaths, chiropractors, opticians and dentists have Section 60 orders in place to make rules to require their registrants to be covered by adequate and appropriate insurance throughout the period of registration. 47 All the healthcare professional regulators are at different stages in implementing the legislation. This detail is outlined in Appendix 1 and a summary provided in Appendix The Health Professions Council is the only other regulator which does not have a Section 60 order in place. 12 Saving Mother Lives Executive summary and key recommendations Mothers -Lives _ExecSumm.aspx Page 13 of 18

14 Next steps 49 The DH has indicated that a consultation on The Nursing and Midwifery (Indemnity Arrangements) Draft Order will take place in the very near future. 50 Once published the draft order, consultation and impact assessment documents will be discussed with the Professional Practice and Registration Committee, Midwifery Committee and Council in seminar mode. A response to the consultation will then be drawn up and a paper submitted for decision to Council. Page 14 of 18

15 Annexe 2 M/10/05 Implementation of PII requirement by other healthcare professional regulators 1 The Osteopaths Act 1993 and the Chiropractors Act 1994 both included permissive powers for the relevant Councils to make rules requiring their registrants to secure that they are properly insured against liability to, or in relation to, their patients. The relevant rules came into force in May 1998 and November 1999 respectively. 2 In August 2004, the Government announced proposals for reforms to the legislation governing the General Dental Council, which included the introduction of compulsory indemnity insurance for dentists 13.The relevant Section 60 Order 14, made in July 2005, included a new provision that a registered dentist must be covered by adequate and appropriate insurance throughout the period during which he is registered in the register (Section 26A). In announcing the making of the Section 60 Order, the Health Minister made reference to the inclusion of a requirement for indemnity cover and went on to say we will also be extending this rule to other health professions when we have the opportunity to legislate The equivalent provisions for doctors were included in the Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006, which the Department of Health issued for consultation in October The accompanying consultation document 16 included the following: Doctors already have a professional obligation, set out in Good Medical Practice, to have insurance / indemnity cover. There is at present, however, no legal obligation for this. The Government s intention is to ensure that where a patient suffers loss or damage caused by, or resulting from, the fault of the practitioner and a court makes an award of damages, then as a result of the statutory requirement for professional indemnity / insurance arrangements, the practitioner will be in a position to pay. The draft Order, therefore, in line with parallel provisions in other legislation regulating healthcare professionals, will require all medical practitioners who hold a licence to practise to have adequate and appropriate indemnity arrangements to cover professional liability. 4 In March 2006, the Department of Health issued a consultation on the draft Pharmacy and Pharmacy Technicians Order The consultation document 17 included: It has long been good practice, and a requirement of the Society s Code of Ethics, for practitioners to have professional indemnity arrangements. However, article 38 of the draft Order proposes, for the first time, that a registrant whose name is 13 General Dental Council to get more teeth The Dentists Act 1984 (Amendment) Order 2005 (SI 2005/2011) General Dental Council gets more teeth Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006: A paper for consultation Pharmacy and Pharmacy Technicians Order 2006: a paper for consultation - Page 15 of 18

16 entered on Part 1 of either register must have in force in relation to him or her an adequate and appropriate indemnity arrangement..this provision is in line with legislation which has recently been, or soon will be, introduced for all other regulated health professionals. 5 The Department of Health review The regulation of the non-medical healthcare professions, published in July , noted that the different regulatory bodies have similar, though not identical, requirements of people seeking new registration. It went on to say In response to a government initiative, indemnity insurance is also becoming a requirement over time (p15, para 4). In identifying connections with the Chief Medical Officer s (CMO) report Good doctors, safer patients, which was published at the same time, the Review said (p44, para 5): Incentives for safer practise were another area in which CMO s recommendations can apply more widely. We are in the process of making professional indemnity cover a condition of registration for all professions. CMO felt that the providers of indemnity services might be persuaded to offer lower premiums to those who could demonstrate a record of safer practice. We would hope this would apply equally to the other health professions who obtain cover from these organisations. 6 Recommendation 37 of Good doctors, safer patients 19 is reproduced below. An accompanying note said This will enable the development of insurance premiums as a more sensitive lever to promote patient safety. The opportunity to use financial incentives to promote safe practice should be examined by an expert group. In particular, the relationship between the quality of clinical governance processes within NHS organisations and the premiums paid by them to the NHS litigation authority, and the relationship between individual practitioners and the premiums paid by them to medical insurers, should be explored. 7 The Government White Paper, Trust, assurance and Safety The Regulation of Health Professionals in the 21 st Century 20, published in February 2007, referred back to the 2006 Review and reiterated the statement In response to a government initiative, indemnity insurance is also becoming a requirement (para 6.3). 18 The regulation of the non-medical healthcare professions: a review by the Department of Health Good doctors, safer patients Trust, assurance and safety the regulation of health professionals in the 21 st century - Page 16 of 18

17 Summary of the implementation of PII requirement by other healthcare professional regulators Professional indemnity is currently a statutory requirement for three of the other health care regulators: General Osteopathic Council General Chiropractic Council General Optical Council Legislation Requirement Comments Osteopaths Act 1993 The General Osteopathic Council (Professional Indemnity Insurance) Rules 1998 (SI 1998/1329) Chiropractors Act 1994 The General Chiropractic Council (Professional Indemnity Insurance) Rules 1999 (SI 1999/3071) Opticians Act 1989 The General Optical Council (Registration) Rules 2005 Section 37 of the Act provides that the Council may make rules requiring registered chiropractors to secure that they are properly insured against liability to, or in relation to, their patients. The relevant Rules came into force in May Section 37 of the Act provides that the Council may make rules requiring registered chiropractors to secure that they are properly insured against liability to, or in relation to, their patients. The relevant Rules came into force in November 1999 Section 10A, which was added to the Act in March 2005, requires that a registered optometrist or registered dispensing optician must be covered by adequate and appropriate insurance throughout the period during which he is registered in the appropriate register. The relevant Rules came into force in June Evidence of cover to be provided at first registration and annually at renewal. Evidence of cover to be provided at first registration and annually at renewal. Evidence of cover to be provided at first registration and annually at renewal. Page 17 of 18

18 The situation for the other health care regulators is set out below: General Dental Council General Medical Council Royal Pharmaceutical Society of Great Britain Pharmaceutical Society of Northern Ireland Health Professions Council Legislation Provisions added to the Dentists Act 1984 in July 2005 Provisions added to the Medical Act 1983 in July 2006 The Pharmacy and Pharmacy Technicians Order 2007 includes provisions making having in force... an adequate and appropriate indemnity arrangement a requirement of registration. No requirement in legislation. No requirement in legislation. Current situation Legislation yet to be implemented. A GDC consultation on the definition of adequate and appropriate insurance for dentists and dental care professionals closed earlier this year. Paragraph 1.6 of Standards for Dental Professionals requires: Make sure your patients are able to claim any compensation they may be entitled to by making sure you are protected against claims at all times, including past periods of practice Legislation yet to be implemented. Paragraph 34 of Good Medical Practice requires: 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. Legislation yet to be implemented. Paragraph 7.7 of the Society s Code of Ethics for Pharmacists and Pharmacy Technicians requires: You must ensure that all professional activities undertaken by you, or under your control, are covered by appropriate professional indemnity arrangements Paragraph 8.11 of a new Code of Ethics, due to come into force on 1 July 2009, requires: Ensure that all professional activities undertaken by you, or under your control, are covered by appropriate professional indemnity arrangements No reference to professional indemnity in the Council s Standards of Conduct Performance and Ethics. At its meeting in March 2009, the Council was asked to consider the implications should professional indemnity insurance become a statutory obligation. The minutes of the meeting are not yet available. Page 18 of 18