James Reilly (Dublin North, Fine Gael)

The purpose of this legislation is to amend and extend the Medical Practitioners Act 2007, to provide for mandatory professional insurance for certain medical practitioners and to provide for connected matters. The legislation is intended to protect patients and to help doctors. It is designed to regulate doctors in order that they have appropriate insurance to practise medicine in Ireland. Currently, one can be registered with the Medical Council. One is not expected to have insurance and while it is ethically expected that one would have insurance, it is not a legal requirement nor is it a criminal offence to practise without it. The Bill seeks to address both deficits and to address ever increasing globalisation whereby doctors can visit private clinics, perform surgery and leave again. I do not denigrate such clinics. Their regulation is an issue but the purpose of the Bill is to provide an absolute guarantee to the public that doctors practising in Ireland have adequate and appropriate insurance and indemnity. They are slightly different but it is not the purpose of the Bill, lest it be construed so, that one or the other would no longer be acceptable.

The majority of doctors are responsible and they carry appropriate medical negligence insurance. However, as in all professions, some may not have an appropriate level of insurance cover either through inadvertence or design. The Department of Health and Children and the Medical Council do not know how many practitioners have insurance, what level of cover they hold, the type of insurance they hold or who provides it. Fine Gael believes that, at the very least, this information must be collected and, following the enactment of this Bill, all doctors will be required to have adequate insurance cover.

The legislation will make medical indemnity cover, forms of which can range from a formal contract of insurance to the type of discretionary indemnity provided by mutual societies such as the Medical Defence Union, MPU and Medical Protection Society, MPS, compulsory. The Bill aims to close a loophole that could allow an unscrupulous doctor to apply for medical registration and practise without insurance. We intend that insurance will be compulsory for all practising doctors and the Bill provides that the Medical Council will have the power to set the appropriate type and level of insurance to be held by different classes of practitioners. For example, eastern European countries with poor economies would consider a €200,000 insurance bond more than adequate to meet their needs whereas clearly in Ireland that would not be adequate. Currently, the Medical Council has no such power and while it states doctors must have adequate cover, there is no system of checking to make sure doctors have cover or adequate cover. Categories of practitioner, such as full-time academics, practitioners registered in Ireland but practising abroad or those retired, would be exempt from holding such indemnity or insurance cover.

This Bill is proposed in the interest of both patients and doctors. It guarantees, for the first time, that patients are protected in so far as that in the event of a mistake or medical negligence, they can claim financial compensation from a doctor. Improved regulation provides better protection to patients, removing the possibility whereby a doctor may not have appropriate insurance or any insurance cover at all. The legislation maintains trust in the profession as a whole, while ensuring all doctors have sufficient insurance cover. It will further provide that before the Medical Council can issue a certificate to practise to a practitioner, written evidence of appropriate insurance must be produced.

Someone irresponsible could practise in Ireland without the appropriate medical negligence insurance and, in the case of negligent or unsatisfactory treatment, an aggrieved or injured patient may have no redress to compensation. The Bill is intended to apply to doctors who are not domiciled in Ireland but who often practise here in private clinics, as well as practitioners normally resident in Ireland. In the event of mistakes or medical negligence, we must offer patients the best protection we can. Compulsory indemnity would instil confidence in the system and guarantee patients' redress if something went wrong.

A draft directive on patient rights in cross-border health care is being considered by the institutions of the European Union. Article 5(1)(e) of the draft directive, as proposed by the Commission, requires member states providing treatment to ensure that health care providers have systems of professional liability insurance or a guarantee or similar equivalent arrangements in place. The UK Government has sought to introduce mandatory indemnity for doctors. The legislation was approved by the UK Parliament in 2006. In parallel with bringing forward the legislation, the UK Government sought to make indemnity compulsory for other health care professionals such as nurses and midwives and mandatory indemnity is being reviewed with a view to its introduction for all professionals. Our Bill is not aimed at nurses or other medical professionals. Other countries such as Singapore and South Africa have taken steps to introduce mandatory indemnity for doctors and they have legislation in draft form. Legislation was also approved in the Cayman Islands to require doctors to have indemnity.

Irish doctors have four main options: the clinical indemnity scheme, the Medical Defence Union, the Medical Protection Society and Medisec. Historically there were other insurers but most have withdrawn. It has been troublesome to get some of them to honour their commitments. I had a discussion with an insurer earlier and there have been issues.

There are three types of insurance. Occurrence-based insurance is offered by the MPS and the MDU. If one was insured when the event occurred, one remains insured even if the claim is not processed for years afterwards. Claims-based insurance is offered by Medisec. If the claim is made years after the event and the professional is no longer insured, cover may not be in place. Run-off cover is required and that will be addressed in the legislation. The clinical indemnity scheme provides State insurance.

One of the most notable features of clinical negligence litigation is the long time lag between an alleged negligent act and an ensuing claim. Professional indemnity has traditionally been provided on an occurrence-based basis because claims may be brought many years after the event. In other words, the indemnity arrangements doctors have in place at the time of an incident can be invoked at any time in the future when a claim emerges. This may be long after they have changed indemnifiers, retired, or even after death. The alternative form of indemnity is claims-made insurance cover. Most insurance policies are offered on this basis and a policy must be in force when a claim is reported. This is all very well for some types of cover, where an incident is reported to the indemnifier almost immediately, for example, car insurance claims, but it does not suffice for medical insurance where claims could be made years later when problems are identified and claimants reach the point where there can be a court case.

Given the nature of claims-made indemnity, it is more difficult to move from one insurer to another or to take breaks from practice without the risk of gaps developing in cover. A clinical negligence claim will often be made two or three years after the original adverse incident. The claim may be made decades after the event in some cases. However, with occurrence-based indemnity, the date on which a claim is brought or reported has no bearing on the right to seek assistance. The MPS and the MDU offer such insurance.

There is no obligation to obtain run-off cover when doctors terminate their insurance policy. However, such cover should be mandatory when doctors do so to avoid gaps in cover. Normally when they move insurer, the new insurer will arrange run-off cover. When doctors leave their insurer because of retirement, career break or otherwise, the insurer could be required to offer run-off cover for a specific period and for a reasonable premium. Such cover protects patients and doctors against claims that may emerge after the policy has terminated but that arise from events unreported during their period of cover.

There is a lack of regulation in private clinics. In the public service all HSE staff, including consultants, non-consultant hospital doctors, nurses and other clinical staff employed by health agencies, are covered by the State clinical indemnity scheme. Conversely, in the private sector we do not know if a medical professional has indemnity insurance unless a claim is made. If one holds a contract with the GMS, one must produce one's insurance, but an issue arises in terms of locums and other private doctors who come and go and whom we presume have insurance but who may not on some occasions.

During the past decade the cosmetic surgery business expanded exponentially. The absence of proper regulation in this area has meant that, on occasions, under-qualified and untrained practitioners have been allowed to perform complicated cosmetic surgery procedures such as breast augmentation, liposuction and gastric banding which have put patients' lives at risk.

A number of issues arise in that regard from the Medical Council's perspective. A doctor may be legitimately on the medical register in this country but not on the specialist register concerned. They may be operating in a specialist area such as plastic or cosmetic surgery even though they are not listed as being such a doctor on the medical register. That puts the Medical Council in a position where it is the body to insist on the type of cover people should have and make that sort of activity illegal. It is clear some resource issues may arise for the Medical Council, but it is in the public interest and the best interest of patients that this happens.

I am aware of at least two cases where a doctor came to this country, operated on a patient, the procedure was not a success and after several return visits to the clinic, the person decided to take legal action. They eventually got to court three years later. The doctor came over from England, admitted he made a mess of the operation but said that he was now bankrupt and no longer had insurance. The patient had no redress in that case and we must address those situations.

The other one is a specific case which was made public but I apologise to the family for any upset it might cause them to have it mentioned again. Absence of regulation had fatal consequences for Bernadette Reid, from Wicklow, who died following surgery for a gastric band operation in a south Dublin clinic, Advanced Cosmetic Surgery. It is reported that Ms Reid went for surgery against the advice of her general practitioner, who considered her unsuitable for the procedure because she had chronic asthma. At no time had anyone from the clinic consulted with the lady's GP or requested her medical records prior to beginning the procedure. During the course of the procedure, it apparently became obvious that she had a tumour and the operation was abandoned.

Regulation of the clinics here is another issue that arises, but it is not one we will deal with today. It is important that patients here are protected and that it is a legal requirement for anyone registered to be insured. The Bill provides for punitive penalties in terms of fines and custodial sentences, particularly for a recurrence.

I want to record that I received a telephone call from the Minister this morning, whom I know is not opposed to the Bill in principle. She will put down an amendment which imposes a moratorium in terms of the Second Reading, with which I do not have an issue. I thank the Minister for her co-operation. This Bill is for the good of patients but also for the good of doctors because the rogue doctors who do not have insurance are the ones likely to create mayhem, which eventually imposes a cost on everybody.

I wish to briefly mention New Zealand, which operates a no fault insurance-indemnity system. Interestingly, one of the people to whom I spoke today told me that their system involves rapid settlements of claims with little involvement of lawyers and savings on legal costs. This system avoids the angst and risk of costly court actions for the claimant while ensuring that the injured party receives adequate and timely compensation but, most importantly, the relevant and necessary supports for them to continue to lead a normal life in so far as that is possible. That is the key issue. Rather than awarding vast sums of money, they seek to address the deficit caused by the negligence and the sums of money awarded are much smaller.

The same company that provides legal indemnity to most doctors here in Ireland also provides a service to the doctors in New Zealand under the no fault system. We should examine that system, adapt it to Ireland's needs and introduce it here in order to save legal costs which can then be used for health care provision at the front line and also to simplify the compensation process for the patient and claimant.

We expect to pay out €60 million in medical-legal costs this year, €20 million of which will be to lawyers. It is interesting that the gentleman to whom I spoke today said that most people appear to be happy with the system in New Zealand and the only people unhappy are those in the legal profession. I commend the Bill to the House and again acknowledge the Minister's support.

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