The Medical Defence Union, the UK's leading medical defence organisation, warned that the UK was in danger of being one of the last countries in the EU to persist with an outdated system of indemnifying doctors which risks leaving patients uncompensated.

In most developed countries, including large EU member states such as France and Germany, it is already a requirement that practising doctors and dentists have professional indemnity insurance in order to protect patients where they are negligently harmed. However in the UK, while there is insurance, there is also discretionary indemnity which provides only the right for a practitioner to request assistance and have the request considered. The MDU, the only medical defence organisation to provide members with a clinical negligence insurance policy1, believes that this is as detrimental to the interests of UK patients (and doctors) as it would be to patients from other member states who were negligently harmed by treatment provided in the UK.

Dr Michael Saunders, MDU Chief Executive said: "In this current medico-legal and economic climate, we cannot understand why the UK still allows unregulated indemnity. The UK has fallen far behind other EU states on this. A German patient who was treated in the UK and negligently harmed by a doctor who was reliant on discretionary indemnity might not be compensated if the indemnifier decided not to assist with the claim. Of course, a German patient who was treated and harmed at home by an insured doctor would receive insured compensation. There is now an opportunity to resolve this anomaly."

The European Commission is currently developing a directive to safeguard patients' rights in cross-border healthcare2, including the need for appropriate 'systems of professional liability insurance or a guarantee or similar arrangement…appropriate to the nature and the extent of the risk'. The MDU has made a submission to the House of Lords Select Committee looking at the draft directive, calling for the EU to ensure that insured professional indemnity is the way forward for doctors and patients in all EU member states.

Dr Saunders added: "We hope that the European directive will be amended to ensure that indemnity must be provided only by the state or a regulated insurer. This would make discretionary indemnity unacceptable in the EU, but that is no more than already happens in Australia, where the Government had to step in and make discretionary indemnity unlawful a few years ago when there was an indemnity crisis.

"In the current volatile economic climate it is particularly important that professional indemnity is regulated as this provides a high degree of protection. Insurance offers a range of protection for policy-holders and patients, including the Financial Ombudsman Service to provide a means of redress when assistance is refused; the Financial Services Compensation Scheme which pays claims in the event that an insurer fails; as well as rights for patients in the event a doctor is declared bankrupt or dies with an insolvent estate. Discretionary indemnity has none of these safeguards.

"When damages are awarded in negligence cases it is imperative that patients know they will receive the compensation due to them. The UK has some of the most forward-thinking and technically advanced doctors in the EU but discretionary indemnity is distinctly last century."

Further information

1. Since 2000, the MDU has provided its members, who are not indemnified by the NHS, with indemnity insurance for professional negligence claims arising out of their treatment of patients in the primary care and independent sectors. This policy is currently co-under SCOR Insurance (UK) Ltd and the International Insurance Company of Hannover Ltd, both of whom are regulated by the Financial Services Authority. The other Medical Defence Organisations provide discretionary indemnity to individual members.

2. The European Union Inquiry into the European Commission's proposed directive on the application of patients' rights in cross-border healthcare

The MDU is a mutual, not for profit, organisation owned by our members who include over 50 per cent of the UK's hospital doctors and GPs. Established in 1885, we were the world's first medical defence organisation. We defend the professional reputations of our members when their clinical performance is called into question. Our benefits of membership include insurance for claims of clinical negligence and a wide range of medico-legal advisory services.

MDU Services Limited (MDUSL) is authorised and regulated by the Financial Services Authority in respect of insurance mediation activities only. MDUSL is an agent for The Medical Defence Union Limited (the MDU). The MDU is not an insurance company. The benefits of membership of the MDU are all discretionary and are subject to the Memorandum and Articles of Association.

MDU Services Limited