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Are Irish doctors really protected by the Clinical Indemnity Scheme?

In today’s society, any medical misstep may be scrutinised under the microscope. It is vital to have the right protection in place, so it is time you ask yourself: am I really protected?

HSE doctors who rely on their state indemnity – otherwise known as the Clinical Indemnity Scheme (CIS) – may be unaware of its limitations. The CIS only protects against clinical negligence claims in the public sector; if you receive a complaint from the Medical Council, are investigated by the Gardaí or are subject to a disciplinary hearing, you are on your own. The CIS will not cover you for claims for any private work.

According to the 2019 Medical Council Annual Report, new complaints totalled 431 in 2019 which was an increase of approximately 10% on the number of complaints received in 2018. It was the highest number of complaints received in one calendar year. 47 of the complaints in 2019 were referred to the Fitness to Practise Committee.

Having representation at Fitness to Practise inquiries can cost a considerable amount of money. It may be difficult for you to self-fund your defence where you do not have adequate indemnity arrangements in place.

As a member of Medical Protection, you can request assistance with:  

  • Medical Council investigations
  • Specialist legal advice and representation in relation to claims*
  • Disciplinary processes
  • Handling complaints
  • Coroner’s report writing*
  • Inquest preparation*
  • Media and press relations
  • Gardaí investigations arising from the provision of clinical care
  • Ombudsman investigations
  • Good Samaritan acts

(* where not supported by CIS)

Other benefits include:

  • Free confidential counselling to members experiencing work-related stress, or stress that they feel could impact their practice
  • Webinars/e-learning/masterclass/workshops to navigate ethical and legal problems that may arise from your practice
  • Wellbeing resources
Reputation management – a case study

Dr K was working in the emergency department of a busy hospital on a demanding Saturday night when a patient, Mr O, arrived in a semi-conscious state. His medical notes revealed a history of alcohol abuse. History-taking was difficult as Mr O seemed very sleepy and incoherent, but the smell of alcohol was enough for Dr K to dismiss the patient’s symptoms as simply the effects of excessive alcohol consumption.

Bloods were taken and sent to the laboratory, and an entry was made in the notes to follow up later. Dr K then took Mr O to a quiet corner to sleep it off and continued to attend to other patients. The next morning, Mr O was found dead. When Dr K had assumed Mr O was drunk, he had actually been ketoacidotic, meaning his death that night had been very likely preventable.

Outcome 1: If Dr K had CIS indemnity only

Dr K spoke to his employer but they were not able to provide him with the support that he needed. By the time the hospital’s internal review commenced six months later, Mr O’s medical notes had gone missing. This left Dr K feeling extremely vulnerable, as he had no contemporaneous notes to back up his actions. Given the timeframe, his recollection of events was unclear.

As expected, the patient’s family brought a claim against the hospital. The hospital solicitors acting on behalf of the HSE requested a statement from Dr K but, without the medical notes, he found it difficult to defend his actions.

The family also made a complaint about Dr K to the Medical Council, who commenced an investigation. Dr K was not entitled to advice or support with this process through the CIS.

The story attracted some media interest and once Dr K’s local community found out that he was being investigated by the Medical Council, he lost the trust of many of his patients. The damage to his reputation – and, potentially, his livelihood – was difficult to repair.

Outcome 2: If Dr K had been a Medical Protection member

When Dr K was told that Mr O had died, he immediately phoned Medical Protection’s 24-hour helpline for advice:

  • A medicolegal consultant recommended that Dr K write up a draft report of the circumstances leading to the patient’s death, and asked him to forward this and a copy of Mr O’s anonymised medical notes (with permission from the hospital) to Medical Protection for review.
  • When the hospital’s internal review started, Medical Protection provided the investigatory team with a copy of the notes (even though the originals had subsequently gone missing) and the full report written by Dr K immediately after the event had occurred.
  • The CIS managed the claim on behalf of the hospital. Medical Protection reviewed the member’s draft report prior to submission.
  • A complaint to the Medical Council was still made by the family; however, Medical Protection guided Dr K through the process. Medical Protection instructed solicitors to represent Dr K and a meeting was arranged at their offices to go through the case with him. Thereafter, the solicitors drafted a letter on Dr K’s behalf to the Medical Council setting out his position.
  • Our press office was also on hand to help Dr K deal with the media intrusion: a statement was issued to the press.
  • Following the ordeal that Dr K went through, he could also access Medical Protection’s free confidential counselling service.
  • As Dr K is committed to learning and self-improvement, he attended a few free risk management webinars by Medical Protection.
Service and campaigning for the profession

Members of Medical Protection are part of an organisation, run for and owned by members; our focus is on protecting members’ careers and reputations, not generating profits. Members who are HSE doctors pay subscriptions and if they face a complaint, regulatory investigation or any other matter listed in the previous table, members have a right to request assistance.

Medical Protection has a long history of providing an excellent quality of service, with experienced medicolegal consultants who are doctors specialised in legal medicine, case managers and lawyers – many of whom are based in Ireland – available to advise, guide and support members when they are facing the most stressful situations in their professional lives.

With our philosophy of supporting safe practice in medicine by helping to avert problems in the first place, we try to help reduce risks for our members. At Medical Protection, there is a wide range of learning resources available free for members including risk management and wellbeing strategies.

Besides Ireland, Medical Protection also has expertise in other jurisdictions which we can draw on, and we actively campaign for regulatory and legal reforms that benefit members and the wider healthcare professions.

For more information, visit Medical Protection at medicalprotection.org/Ireland

This article was written by Dr Rachel Birch, Medicolegal Consultant at Medical Protection Society.

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