MDOs divided on deal for state indemnity scheme to take on historic claims

The medical defence organisations (MDOs) are split over whether to take part in arrangements for an 'existing liabilities scheme', which would see the government take on responsibility for historic claims as part of state-backed indemnity.

(Photo: Sarinya Pinngam/Getty Images)
(Photo: Sarinya Pinngam/Getty Images)

So far only the MPS has agreed terms for the government in England to take on its historic claims. The MDU and the MDDUS remain in negotiations with the DHSC over the issue.

This means that as things stand MDU members who were moved onto the organisation’s ‘transitional benefits’ package, which involved switching to a ‘claims-made’ indemnity model that only covers GPs while their policy is active, will still have to buy run-off cover if they switch to a different indemnity provider or retire early.

The three MDOs have been in negotiations with the English and Welsh governments for months to reach an agreement about historic clinical negligence claims. These are claims that were ongoing when the state scheme started this week and those that come to light later but relate to incidents that happened before state indemnity was introduced.

The new Clinical Negligence Scheme for GPs in England and Scheme for General Medical Practice Indemnity in Wales, which began on Monday, are currently only responsible for NHS clinical negligence claims relating to incidents that happened on or after 1 April 2019.

However, earlier this week the government and the MPS revealed that they had 'agreed commercial terms' for the state scheme in England run by NHS Resolution to take on responsibility for all claims from MPS members relating to treatment under an NHS contract.

Final details of the arrangement are still being worked out, but the MPS said it will continue to manage claims for incidents before 1 April 2019 for the next two years to ensure a smooth transition.

Ongoing discussions

In a written statement to parliament this week health minister Caroline Dinenage said that discussions on commercial arrangements with the MDU and the MDDUS about historic claims were still ‘ongoing’.

The MDDUS said that it had yet to make a decision about whether to join the existing liabilities scheme.

MDDUS CEO Chris Kenny said: 'It is beholden on us to make sure that any scheme is cast iron in its legality and that the operational arrangements put in place preserve the highest standards of expertise and personal support for members’ professional reputation and personal support as claims progress.

'We cannot speculate about the outcome at the moment, but we will not see our current and potential members sold short financially or personally.’

The MDU said that the government had ‘failed in its promise… to put in place a realistic solution’. It added that to meet the needs of current and future GPs ‘the government is well aware that GPs need the state to meet existing liabilities at the same time as the scheme for future incidents begins.

‘This happened when state indemnity came in for hospital doctors in 1990 and the government’s failure to do the same for GPs today is regrettable.’

Run-off cover

The MDU introduced its ‘transitional benefits’ package in 2017 when the government first announced its plans for state indemnity for GPs. All MDU members were moved onto the deal at their next renewal date, which saw their indemnity fees fall by almost half as they were switched to a ‘claims-made’ model. The other two MDOs continued to offer the traditional occurence based cover.

'Claims-made' indemnity means that GPs are only covered for the period the policy is active. Occurrence based indemnity provides GPs with lifetime cover providing they were a member of the MDO at the time the incident occurred.

The MDU has said that GP members will need to buy run-off cover for the period they were on transitional benefits if the state-backed scheme does not pick up historic liabilities and they leave the MDU before the normal retirement age for their NHS pension scheme. GPs who remain with the MDU will not need to buy the cover.

MPS chief executive Simon Kayal said the MPS deal with the government was ‘a really positive outcome’. He added: ‘All these claims – however much they settle for or however long in to the future they settle - will now be the responsibility of government.’

The MPS added that discussions in Wales about a similar arrangement were at 'an advanced stage' and it would communicate with members when a clear outcome was reached.

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