Health Care and Associated Professions (Indemnity Arrangements) Order 2014 [Draft]
Good morning and welcome to the 18th meeting in 2014 of the Health and Sport Committee. As is usual at this point, I ask everyone in the room to switch off mobile phones and other wireless devices because they can interfere with the sound system and disturb the meeting. The caveat to that, of course, is that members and officials are using tablet devices instead of hard copies of the meeting papers.
The first item on the agenda is subordinate legislation. We have before us today one instrument that is subject to affirmative procedure—the draft Health Care and Associated Professions (Indemnity Arrangements) Order 2014. As usual with affirmative instruments, we will hear evidence from the cabinet secretary and his officials. Once all our questions have been answered, we will have the formal debate on the motion.
I welcome the Cabinet Secretary for Health and Wellbeing, Alex Neil: we are pleased to have you here, cabinet secretary. He is accompanied by his officials. They are Jason Birch, who is senior policy manager of the regulatory unit in the health directorate, and Ailsa Garland, who is the principal legal officer of food, health and community care at the Scottish Government. Welcome to you all. I ask the cabinet secretary to make a few opening remarks.
Thank you, convener.
At present in Scotland, England, Wales and Northern Ireland there is, across the nine statutory healthcare regulatory bodies, no consistency in legislation or guidance on the need for health professionals to have in place insurance or indemnity.
The Scottish Government and the health departments in the three other nations believe that it is unacceptable for individuals not to have access to compensation when they suffer harm through negligence on the part of a healthcare professional. In order to rectify the situation, the order will require all statutorily regulated practising healthcare professionals to have in place insurance or indemnity as a condition of registration with their respective regulators. Regulated healthcare professionals who cannot demonstrate that such arrangements are in place will be unable to practise.
The development of the order follows an independent four nations review—led by Finlay Scott, who is a former chief executive of the General Medical Council—which reported in June 2010. The key recommendation of the review was that
“There should be a statutory duty upon registrants to have insurance or indemnity in respect of liabilities which may be incurred in carrying out work as a registered healthcare professional.”
The four health departments accepted the report and its main recommendations in December 2010, and undertook to introduce legislative changes at the next opportunity.
The order will also implement article 4(2)(d) of the 2011 European Union directive on patients’ rights in cross-border healthcare, which requires member states to ensure that
“systems of professional liability insurance, or a guarantee or similar arrangement that is equivalent or essentially comparable as regards its purpose and which is appropriate to the nature and the extent of the risk, are in place for treatment provided on its territory”.
It is important to note that the vast majority of regulated healthcare professionals are in receipt of cover by virtue of their employer’s vicarious liability or via membership of a professional body that offers an indemnity arrangement as a benefit. However, it should be noted that it will be for individual healthcare professionals to assure themselves that appropriate cover is in place for all the work that they undertake.
The Scottish Government is committed to ensuring that people have access to appropriate redress, in the unlikely event that they are negligently harmed during the course of their care. Everyone should have that right. I am happy to answer questions to the best of my ability.
I thank the cabinet secretary for those opening remarks. We have a question from Rhoda Grant.
It is my understanding that, in order to ensure that everybody has indemnity insurance, it will be a requirement of their registration that they provide evidence of such insurance. Is that right?
Yes.
A person’s taking a career break and not practising could become a barrier to their reregistering. Once someone is trained, if they take a career break to bring up a family, or the like, there is a cost for keeping up registration, but there would be another cost entirely for keeping up indemnity insurance that they would not be using. Will there be special measures in place to cater for those people?
I will ask Ailsa Garland to handle the detail, but the principle is that the order applies to practising healthcare professionals. If the person is practising, they will be required to have indemnity insurance. My understanding from the briefing—Ailsa Garland, as a lawyer, will confirm whether it is correct—is that a woman who has taken five or 10 years out in order to have a family would not be required to indemnify herself during the period when she is not practising.
The cabinet secretary is correct. The terms of the order relate to registered professionals who are practising as such. My understanding is that those who are not practising will not be required to keep up their insurance during that period.
Would such people still be able to keep up their registration?
Yes. A different category is in play there.
I welcome the order. I note that
“Provisions relating to the regulation of the majority of healthcare professions are reserved to the UK Parliament.”
What percentage of professionals does the Scottish Government order cover?
It will pretty well cover all the 32 professions that operate in the national health service in Scotland, and they are covered by the nine regulatory bodies that are referred to. The professions include nurses, midwives, doctors, ophthalmic practitioners and dentists—the whole range of professionals. I cannot think offhand of any professional group in the national health service that would not be covered and is not listed among the 32 professions that are covered by the order.
That is correct. To clarify, there are seven professional groups for which the Scottish Parliament has devolved responsibility. We can supply details of those, if that would be helpful.
Thank you.
If doctors are registered but not licensed, they will not be able to practise. I presume that Ms Garland’s previous remarks cover that. If they are registered and then decide to license again, will they have to pay for the indemnity?
Yes. You are probably aware that the order will amend various pieces of legislation that are already in place, so the wording is slightly different for different professional bodies. For example, in relation to medical practitioners, the order refers to
“A person who holds a licence to practise as a medical practitioner, and practises as such”.
That is where the requirement to have indemnity applies.
At the moment, for those who are practising in a hospital setting, the hospital covers the indemnity. Who covers the indemnity of a general practitioner who is working on a locum basis and is employed by a health board?
My understanding is that GPs all cover themselves, because they are independent practitioners. They are not part of a national health service policy because they are independent, but they must cover themselves.
I understand that that is true for independent contractors, but there is a group of professionals—dentists, doctors and possibly others—who are employed directly by the health board and are not independent contractors, in the general sense of the term, but are salaried doctors. Will they be covered by the NHS or will they have to pay for cover themselves?
In the national health service in Scotland 4 per cent of GPs are salaried employees of the national health service. My understanding is that they would be covered by the national health service, because we cover our employees.
That is my understanding. If GPs are employed by the health board, there would be an insurance arrangement through the health board. I am not absolutely certain, however, but we can check.
We will double-check on GPs.
That is fine.
There are increasingly complex arrangements for employment. For example, some people are employed by a health board through an agency. In such cases, will responsibility for ensuring that the practitioner has indemnity lie with the agency, the practitioner or the health board that is purchasing services from the agency?
Ailsa Garland will correct me if I am wrong, but my understanding is that it is clear in law that it is the duty of the doctor—the practitioner—if they are not employed by the national health service, to ensure that they are indemnified. Is that right, Ailsa?
Under the new arrangements that the order provides for, it will be up to the practitioner to ensure that they have indemnity in place. That will be a condition of their licence or registration—however it is termed—with the relevant professional body. My understanding is that when a practitioner works for someone else, normally insurance is in place through their employer, but it will be for the practitioner to check that that is the case. Whatever the circumstances in which a person practises, they will require to have insurance in place.
My final question is on the same lines and follows Rhoda Grant’s question about career breaks. It is, of course, possible for a person to be taking a career break and to be sued for earlier negligence. Will it be a requirement that such practitioners carry indemnity beyond the point at which they are practising? Will someone who is no longer a member of the Medical and Dental Defence Union of Scotland still be covered?
Again, Ailsa Garland can correct me if I am wrong, but my understanding is that, in such situations, what matters is the date on which the alleged harm took place and whether the doctor was indemnified at that stage. If a doctor is indemnified and legal action goes on for two or three years, the indemnification covers the costs of that action right through to conclusion.
That is certainly what I imagine would be the case. As with any insurance policy, what matters is that the person was covered when the event occurred, even if they are no longer insured. I assume that the situation would be similar to one in which a person had had a car accident and no longer had the car, but the insurer’s liability continued. That is how I understand the system would operate.
That is my understanding.
A number of staff might be employed jointly by two organisations. Given that health and social care integration is coming along, there will be people who are employed by the NHS and by a local authority, and some people might be employed by a new employing authority. Will those people all be covered as they are at the moment under the NHS?
Initially, the integrated authorities will not employ any medical staff directly, but the legislation allows them to do that, so it will happen over time. An arrangement would need to be reached by the health board and the integrated authority about which of them would cover the indemnity. Under the legislation, the practitioner—the health professional—will still have to be indemnified.
Thank you very much.
Will health boards or the Government have oversight of practising professionals who will now be responsible for providing insurance for themselves? Will they need to register that they have secured that insurance?
No. The NHS must ensure that anyone who carries out work for the NHS is indemnified. It is entirely the responsibility of those who are in private practice themselves to ensure that they are indemnified. In such circumstances, we have no regulatory authority at all.
Colin, do you have a question?
My question was on the retrospective aspect, which Richard Simpson has covered.
My approach to the issue is similar to that of Richard Simpson, although I come at it from a different angle. I note that you have consulted stakeholder groups on the proposed arrangements. The NHS and the organisations of health professionals and practitioners will have been included in that process.
09:45An insurance scheme is only as good as the policy that is taken out. Does the Scottish Government have any control over the quality of the indemnity scheme that is taken out? Are there one or two large providers who specialise in the kind of scheme that healthcare professionals would sign up to if they were practising privately, or are the professionals within their rights to shop around to find the best deal in the same way as people do for other forms of insurance?
No. The health boards are responsible for ensuring that their employees are indemnified because the boards, rather than me as the minister, are the employers. The responsibility of boards is entirely within the law and is to ensure that people are indemnified. Obviously, a board is entitled to shop around for the best deal—boards indemnify through various organisations and companies.
However, regulation of the indemnifiers of the insurance is a reserved matter and is part of the financial services regulatory regime and not part of the healthcare regime. In other words, a health board would, I hope, commission an insurance or indemnification policy only from a licensed, respected and respectable insurance company.
That is what I thought would happen in relation to NHS boards. I hope and expect that boards would be very robust in respect of indemnity policies for staff who work in the NHS. I am thinking more about the private sector and areas of healthcare provision in which it is possible that bodies might shop around to reduce their margins. You, as cabinet secretary, and the Government would not have any control of that—you would not be able to say when a policy does not cut the mustard. A private healthcare professional could be required by law to have a policy that might not be robust enough for the claims that could be made against it. Although we must hope that that would never happen, it is a significant issue, in practice. Would financial services regulation at UK level deal with that?
It is fair to say that the regulatory bodies themselves keep a close eye on the situation in order to ensure that those who operate in the private sector are adequately and properly indemnified. That is not the role of the Scottish Government, because we do not control the private sector. I am, however, absolutely sure that the regulatory bodies will monitor that to ensure that the policies that are taken out are adequate to cover any possible claim.
You have probably given the final bit of assurance that I needed. I suppose that it is within the right of any regulatory body or registration scheme to deregister a practitioner if they think that the practitioner does not have appropriate indemnity. That would be a check and balance within the system.
There are two points to make. I would have thought that a private practitioner who has not indemnified themselves—in particular where there is evidence that that is deliberate and they have not just forgotten to renew their policy—would fall foul of the regulatory bodies, which would affect their ability to continue in the profession. That ability might even be called into question most obviously by the General Medical Council. For example, we have seen some quite high-profile cases in which cosmetic surgery has gone seriously wrong. A private cosmetic surgeon who has not been indemnified, and who must in law be indemnified, would risk being struck off.
That is helpful.
Richard Simpson made a point earlier about doctors who are employed and doctors who work independently. What about out-of-hours doctors who work for the NHS for a fee and might only work for a couple of days, or appear for one night and then never be seen again?
My understanding is that such doctors would be indemnified through their board or through NHS 24.
Excellent. Thank you.
That concludes the committee’s questions. Agenda item 2 is the formal debate on the Scottish statutory instrument on which we have just taken evidence. I remind members, as I usually do at this point, that because it is a formal debate they should not put questions to the minister, and that officials may not speak.
Motion moved,
That the Health and Sport Committee recommends that the Health Care and Associated Professions (Indemnity Arrangements) Order 2014 [draft] be approved.—[Alex Neil.]
No member wishes to contribute to the debate. Cabinet secretary, I do not expect that there is any need to sum up the debate.
It might be useful to point out something. The order is an affirmative instrument. Assuming that there are no difficulties with it in the chamber, it is expected that the Privy Council will formally endorse it at its meeting on 16 July. The legislation would in that case become effective as of 17 July this year.
Thank you for putting that information on the record.
Motion agreed to,
That the Health and Sport Committee recommends that the Health Care and Associated Professions (Indemnity Arrangements) Order 2014 [draft] be approved.
I thank the cabinet secretary and his colleagues.
I suspend the meeting to set up for our panel of witnesses for the Food (Scotland) Bill.
09:51 Meeting suspended.Previous
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