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Medical Protection Society is a member-owned, not-for-profit organisation with the sole purpose of protecting the careers and reputations of members, so it is important that we hear from members and all areas of the profession in order to be best positioned to help and support.
Amid a range of important issues, one question that I encounter often was how Medical Protection Society’s occurrence-based offering differs from the insurance-based offering of other organisations.
Medical Protection Society offers discretionary indemnity. The relative merits of discretionary indemnity compared with insurance might not be an issue that doctors spend most of their time thinking about
If you want to understand why the products differ in cost and what benefits they deliver, then the following information may make the difference between a lifetime of professional protection and a lifetime of regret.
At Medical Protection Society, our members are part of a mutual organisation that they collectively own. Members pay subscriptions that go into a central pool. If they face a complaint, claim, regulatory investigation, or any other matter, members have a right to request assistance paid from this central pool.
As the organisation is owned by members, our first step is to see how the member seeking assistance can be helped.
Once a request for assistance is approved, an experienced team of medicolegal consultants, case managers, an in-house legal team, and panel lawyers will take on every aspect of the case on the member’s behalf. The level of assistance will depend on the scenario, but we have the discretion to provide the right level of assistance, without being restricted by small print or financial caps.
Often, one of the key differentiators between the protection we provide, and alternative contract-based insurance products, is the ability to use discretion flexibly to proactively assist members.
This provides a clear point of difference between the doctor who has a contract of insurance – which specifies what protection and services the insurance company will and will not provide, along with exclusions and financial caps – and one with discretionary indemnity.
The medicolegal risks faced by medical professionals are not limited to litigation. Through the course of your career, you could be faced with patient complaints to your practice or hospital, regulatory complaints, claims in negligence, inquests, or in the worst-case scenario, criminal charges. We help members in a variety of ways, including providing advice in relation to managing certain scenarios, drafting responses to complaints, and intervening early to prevent unnecessary escalation.
Some patients choose to make a complaint to the regulator or indeed threaten to do so. If members contact us at the earliest opportunity, we can often assist to resolve matters before they go any further. This can help prevent unnecessary escalation and ensure an appropriate resolution is achieved for the patient.
If a member receives a notification of a complaint from the regulator, they should seek assistance straight away. Our team of experts can support. We also provide assistance with regulatory matters regardless of whether the complaint involves a patient or a patient's treatment.
Another consideration for many doctors is whether protection will be available when they need it.
There is sometimes a belief that a discretionary indemnifier could refuse or even withdraw assistance on a whim. This is not correct. As a discretionary indemnity organisation, we must follow the law around how discretion is exercised including ensuring that our decisions are not arbitrary or irrational. As a mutual organisation, who exists only for the benefit of its members, our starting point is always to see how we can help and MPS is committed to treating members fairly.
There are very few occasions where we have to decline requests for assistance. These situations may arise if a member is not in membership at the time of the incident, not indemnified for the type of work or procedures a complaint or claim is regarding, or the request for assistance is related to matters considered outside the scope of benefits of membership.
By way of contrast, an insurance contract specifies when the insurance company will step in to support and when it won’t. It is important to check the fine print and consider whether there are exclusions, financial limits or caps. If damages are awarded that exceed such a cap, this would leave a doctor personally liable.
Some insurers also have significant excesses, which could mean an individual has to effectively fund some of their own costs.
In our experience, those who have representation when facing professional regulators obtain better outcomes than those who do not.
Finally, another key point of difference for doctors to consider, is whether their protection is ‘occurrence-based’ or ‘claims-made’, and what extra steps they might need to take if opting for the latter.
Occurrence-based discretionary indemnity allows you to request assistance for incidents that arise (or ‘occur’) at any time during your membership – irrespective of when the assistance is needed, when a complaint is made, or when a claim arises. This could be years after the event – even during a career break or after membership has ended.
With claims-made protection, assistance is dependent on both the date on which an incident occurs and the date that it is reported. If you retire, leave medicine, or take a career break, you may need to purchase ‘extended-reporting benefits’ (sometimes called ‘run-off cover’), to allow you to continue to request assistance for incidents that arose during the period of the claims-made policy or membership. If you switch providers, your new protection would need to include retroactive cover for any new matters that come to light after transferring to the new insurer or indemnifier. This can come at an additional cost.
If an individual is not given the option to purchase the necessary run-off cover when they wish to leave or retire, the doctor with a claims-made policy has no protection in place if a claim later arises and the incident that gave rise to the claim was not reported within the terms of the policy.
Another important aspect to consider in most, if not all, claims-made policies is the 'Incident Reporting' requirement. This provision requires the doctor to report facts or circumstances of an adverse incident that might give rise to a claim in the future, and to do so within a prescribed period of time, in order for the claim to be valid under the terms of the policy.
Ultimately, the decision on whether to choose discretionary indemnity or insurance, and occurrence-based or claims-made protection, rests on your individual circumstances. The indemnity provider or insurer that you opt for should be able to explain how they will protect you. My colleagues and I would be more than happy to answer any other questions you may have if they have not been addressed in this article.
