MDU raises concern over historic claims funds as legal battle with government continues

The MDU has admitted that the failure to agree terms with the government over historic clinical negligence claims means it faces 'increased demand' for payouts 'against dwindling funds' contributed by its members.

(Photo: Sirinarth Mekvorawuth/EyeEm/Getty Images)

The MDU, which is currently locked in a legal battle with the government on the matter, is the only medical defence organisation that remains responsible for its historic liabilities – claims relating to incidents that occured before the state-backed Clinical Negligence Scheme for GPs (CNSGP) was introduced on the 1 April. Both Medical Protection and the MDDUS have agreed terms for the government to take on their portfolios of existing liabilities.

However, the MDU has raised concerns that it must now continue to cover the cost of claims for historic incidents, despite receiving much smaller subscriptions from its members since the state-backed scheme was introduced.

In a letter to health select committee chair MP Dr Sarah Wollaston, sent in August, MDU head of governmental and external relations Mary-Lou Nesbitt said that because members 'are now indemnified by the NHS for their "future" claims (which are unlikely to be notified until 3-5 years after 1 April 2019, giving DHSC a payment holiday), they no longer pay us a subscription for their indemnity, though we rely on GP members’ continuing subscriptions to help to meet their needs for historic claims'.

She added: 'The outcome of the DHSC’s failure to agree a scheme to indemnify the MDU’s GP  members for their historic claims is the prospect of increased demand against dwindling funds contributed by these GPs.'

The letter said that 'the DHSC has not engaged in any meaningful discussions with us since 1 April and we are unable to move this along. Four months have passed and the problem is becoming increasingly acute.'

Judicial review

The MDU, which estimates it represents 47% of English GPs, slashed its rates for membership in 2017 following the announcement that state-backed indemnity would be introduced because it believed the new scheme would pick up historic liabilities.

In its letter to Dr Wollaston, the organisation said it had 'tried repeatedly to find a solution with the DHSC before 1 April to extend NHS indemnity to our GP members’ historic claims'. However, it added: 'we could not agree arrangements with the DHSC that would be acceptable for our GP members' clinical negligence liabilities'.

As a result the MDU launched a judicial review into the government's decision to introduce a future liabilities scheme without implementing an existing liabilities scheme at the same time. This legal action is ongoing.

Dr Wollaston forwarded the MDU's letter to health secretary Matt Hancock asking for an update on negotiations. Mr Hancock's reply in late September said that it was the government's intention to introduce an existing liabilities scheme to cover historic claims, subject to discussions with the medical defence organisations, but that negotiations with the MDU were 'yet to bear fruit'.

He said the MDU's decision to launch a judicial review was 'an important and unwelcome development', adding that it was being fully defended by the DHSC.

Historic liabilities

Mr Hancock said: 'The department is still open to continuing discussions with MDU to secure its involvement in the arrangements for the existing liabilities scheme subject to agreeing satisfactory terms including on price. The MDU has now responded to that letter and my officials will be responding in due course.'

An MDU spokesperson told GPonline: ‘Our letter to Sarah Wollaston was aimed at pointing out the need for the DHSC to find a solution on historic claims which is fair and acceptable for our members. Our Save GP campaign was launched because GPs couldn’t afford to pay for the true cost of claims following the Lord Chancellor’s decision to drastically reduce the discount rate.

‘GPs no longer pay subscriptions for indemnity for NHS work to their medical defence organisations and the fact that subscriptions have dwindled is as expected. It is not news.

‘The MDU is the biggest indemnifier of English GPs and our members have claims going back 30 years or more. These historic liabilities have been inflated retrospectively by successive governments and this government should be addressing them through a sensible existing liabilities scheme.

‘MDU members are in very good hands but it would be better for them to have the certainty of a fair agreement with the DHSC in respect of their historic liabilities. The MDU will continue to work towards a fair outcome for our GP members.’

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