Health Service Focus

22.05.19

The introduction of state indemnity and the continued importance of MDO membership

Source: NHE May/June 2019

Dr Caroline Fryar, head of advisory services at the Medical Defence Union (MDU), explains why medical defence organisation (MDO) membership remains important following the introduction of state indemnity.

On 1 April 2019, state indemnity for NHS contracted primary care work was introduced in England and Wales. Following this, the MDU surveyed 700 GPs and found that many do not know the full implications and limitations of state indemnity. For example, 40% of respondents believed the schemes would offer them support with performers’ list actions, whilst 20% thought help with GMC investigations and inquests would be included too.

In fact, support for performers’ list actions, GMC investigations and inquests is not provided under the state-backed schemes. State indemnity only covers clinical negligence liabilities arising from GPs’ commissioned practice.

Further, the state indemnity schemes do not cover claims arising from common day-to-day practice activities such as providing medical reports, signing death certificates, and travel clinic services for practice patients. Likewise, private GP work, occupational health work, family planning services and slimming clinics are not covered by the state schemes, but can be indemnified through MDU membership. 

Consequently, medical professionals will still need the expert guidance from the MDU or their own MDO with many issues such as complaints handling, coroners’ inquests, GMC investigations, criminal investigations, and dealing with the media. In the last 12 months, the MDU opened over 6,000 case-files on behalf of GP members relating to matters that are not covered by the new scheme.  

The MDU advisory and legal teams are able to support and guide members through these investigations, and know how these difficult and distressing times can impact a member’s career, reputation and livelihood.

The increasing cost of claims

Unfortunately, the introduction of state indemnity does not address the root causes behind the spiralling cost of claims. 

In early 2017, the government took a decision to dramatically lower the personal injury discount rate which had the immediate effect of inflating the value of clinical negligence claims. The change affected both existing and ‘yet to be notified’ claims. 

Subsequently, in a single week in October 2018, NHS Resolution agreed compensation awards in just two clinical negligence cases that could amount to £37m and £27m. NHS Resolution’s total estimated liabilities stood at £77bn at 31 March 2018, which means that colossal sums of money are being diverted from patient care at a time when the service is under severe financial strain.

In December 2017, the Public Accounts Committee (PAC) recommended that the government “must take urgent and coordinated action to address the rising costs of clinical negligence. This includes reviewing whether current legislation remains adequate.” 

In the long-term, tort reform is the only solution.  It has been proven to work in other countries around the world and it should be at the top of the list.

Don’t leave your career exposed

The following case demonstrates how a single clinical incident can lead to multiple investigations.

A complaint was made against a MDU member by an individual regarding the care provided to his mother who died from gastrointestinal bleeding.

Initially, the complaint was made to NHS England who requested a meeting to discuss the complaint. NHS England also asked for an audit of 20 sets of clinical records and to see the Significant Event Audit paperwork.

The MDU provided support to the member by attending the meeting alongside the member and helping him to compose a factual account of the incident and self-reflection on what could be improved in the future.

The complaint was also referred to the GMC who opened an investigation. The allegations included seven items of misconduct such as not taking necessary equipment on a home visit, not obtaining a full history or doing a complete examination, and offering to complete a death certificate which did not mention the acute illness.

The MDU’s legal team provided a response to the GMC on behalf of the member, including a record audit undertaken by NHS England showing improvements in documentation. The GMC closed the case with advice 11 days later.

The member commented: “The support, help and guidance offered to me by the advisory team at the MDU has been excellent. I contacted my medico-legal adviser who took a considerable amount of time talking me through my fears surrounding the case. His support was invaluable.”

This case highlights some of the investigations doctors can face after an apparently routine consultation and illustrates why, even after the introduction of state-backed indemnity, GPs still need the expert support and guidance that MDU membership provides.

Having MDU membership will ensure that you have access to a wide range of benefits above and beyond clinical negligence cover.

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