Over the last 20 years, more healthcare professionals have faced investigation into complaints about medical care and health care outcomes.1 Reassuringly, the numbers of doctors who are then referred to the General Medical Council (GMC) or have to face legal procedures or claims for compensation are still very small.
In the context of the College’s educational role to promote more effective doctors, the College’s aim is to encourage junior doctors to understand and plan for all issues affecting their professional practice.
A vital issue for all doctors is having appropriate indemnity cover in the event that their practice is challenged.
Not all junior doctors have independent professional indemnity cover and some do not fully appreciate the limits of the protection afforded by the Clinical Negligence Scheme for Trusts (CNST) operated by the NHS Litigation Authority (NHSLA) in England and other NHS Indemnity Schemes in other parts of UK . The CNST provides indemnity for NHS trusts for claims arising in the course of NHS duties and employment. The BMA and the RCOG strongly urge all doctors to be sure they arrange appropriate personal indemnity cover .
CNST and NHS indemnity cover for NHS employers
NHS organisations are, like other employers, vicariously liable for the acts and omissions of their employees, arising out of and in the course of their employment. They are therefore responsible for responding to claims of negligence against their medical and dental staff.
They can obtain indemnity cover for this through their membership of CNST and other similar indemnity schemes in Scotland, Wales, and Northern Ireland. This indemnity covers claims for clinical negligence arising from the acts or omissions of staff in the course of their NHS employment. It also covers other situations in which the NHS body is responsible to the persons harmed, for example, the actions of locums, medical academic staff with honorary contracts, students, those conducting clinical trials, and people undergoing further professional education, training, and examinations.
In respect of volunteers working directly for the NHS, the NHSLA ‘Liabilities to Third Parties Scheme (LTPS) provides indemnity cover for non-clinical acts and omissions. The vast majority of trusts in England are members of this.
CNST will not cover ‘good samaritan’ acts, other than in certain restricted circumstances, nor work outside the NHS e.g. private practice or reports for insurance companies, the police, etc.
CNST provides cover for the organisation , not the individual employee. However, as noted above, the organisation is vicariously liable in law for the acts or omissions of its staff arising out of and in the course of their employment. CNST responds to compensation claims by patients alleging clinical negligence and does not have the professional reputation of the doctor as its primary focus, although that is considered by NHSLA when assessing claims. CNST does not respond to criminal, disciplinary or regulatory actions or inquiries, such as fitness to practice proceedings against a doctor by the GMC. This is an important distinction that doctors need to understand. Likewise, it does not cover support for responding to individual complaints, criminal, disciplinary or regulatory investigations and hearings.
NHS indemnity – compensation for patients
In order for a claimant to prove clinical negligence the doctor (or other health professional caring for the patient) must have acted in a way that falls short of acceptable professional standards. The test is whether the actions or omissions of the health professional in question are supported by a ‘responsible body of clinical opinion’ at the time. It will not be enough for the claimant to show that other health professionals might have done something differently if a ‘responsible body’ of health professionals would have done the same thing.
The harm suffered by the patient must also be shown, on the balance of probabilities, to be directly linked with the failure of the health professional to meet appropriate standards. If, for example, there was a good chance that the patient would have suffered the harm even if the health professional had acted differently, then the claim is unlikely to succeed.2
Where clinical negligence is proved, compensation will be due to the patient. The cost of this and any legal proceedings leading to an award will be covered by the NHS body’s membership of CNST.
Professional indemnity – cover for clinical negligence claims and complaints, disciplinary and regulatory action
Medico-legal defence and insurance organisations provide independent legal cover to individual doctors against complaints, and disciplinary and regulatory hearings. This includes criminal proceedings and coroners’ inquests. It provides protection and support for individual medical professionals beyond the indemnity available under CNST. The benefits are usually discretionary, in that they may not always be forthcoming, but they are invaluable when granted. The defence organisation or insurer should be asked for more specific details of coverage.
The BMA provides support on contractual terms and conditions and support during ARCP/RITAs for trainees in difficulty (i.e. employment matters) but will not deal with regulatory or professional matters.
Contracted hours, European Working Time Regulation (EWTR), extra hours and opt-out
All doctors employed by NHS bodies in England are covered under the umbrella of the CNST and the indemnity it provides to NHS bodies (as above). This is applicable to all NHS activity on behalf of the employer, regardless of number of hours worked, providing it is for work that you are expected to be doing.
The individual opt-out from the average 48 hour week provided by EWTR allows an individual to agree to work more than this should they wish. Thus an individual junior doctor can work up to a maximum of 56 hours a week (in keeping with New Deal contractual limits), over a 26 week reference period if they and their employer agree this. Notwithstanding these limits, the NHSLA will cover all worked hours, as will professional indemnity providers, provided the activity is NHS work on behalf of the employer.
However, doctors cannot opt out of the contractual New Deal and EWTR rest requirements. If he/she chooses to ignore these or to “moonlight” (e.g. work a locum night shift immediately before or after working their contracted normal day shift), they will not be abiding by the principles of Good Medical Practice as laid down by the GMC and would be in breach of their contract of employment.
Dr A delivered a baby by emergency caesarean section following a fetal bradycardia. The baby was born in poor condition and despite immediate resuscitation died two days later. The scenario is very distressing for all those involved.
The parents sued the trust for negligence and were awarded compensation through the NHSLA. However, the coroner also referred the case to the police and the doctor was prosecuted for manslaughter.
Criminal proceedings brought against the individual doctor(s) were not covered by the NHSLA. The doctor was suspended during investigation and his/her medical defence organisation that provided professional indemnity, supported him/her through the process and provided legal representation. Without this the doctor would not have received any professional legal support and would have had to self-fund their legal team. The doctor was eventually acquitted of the charges.
It should be said that the numbers of criminal proceedings brought against doctors are very small. There have been only 177 cases leading to 75 convictions over the last 100 years. However, more than half of these have been since 1990, showing that cases are increasing in recent years.3
The Junior Doctors Committee of the BMA and RCOG National Trainees Committee strongly recommend that all UK junior doctors in medical practice secure independent, individual medico-legal cover.
1. Department of Health, Making Amends (2003), p. 9
3. R Soc Med 2006;99:309–4
Further information and useful contacts
- Medical Defence Union (MDU), tel 0800 716 376
- Medical Protection Society (MPS), tel 0845 718 7187
- Medical and Dental Defence Union of Scotland (MDDUS), tel 0845 270 2038
- British Medical Association (BMA), tel 0300 123 1233