Colm Burke (Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I, too, welcome the Minister. I am pleased to introduce this Bill in the House and acknowledge the contribution of the Minister who when in opposition in October 2009 introduced the Medical Practitioners (Professional Indemnity)(Amendment) Bill. The then Minister, Mary Harney, acknowledged the need for change in this area and legislation to be put in place to make it compulsory for medical practitioners to have insurance. Three and a half years on, we are back with a new draft on which I have worked with several parties. I acknowledge their contribution in bringing forward the Bill. They include Dr. Brian Hunt, parliamentary draftsperson; Ms Clare Mungovan, a solicitor in my office, and Mr. Tony O'Connor, senior counsel. I met Ms Caroline Spillane and members of the Medical Council, Mr. Ciarán Breen of the State Claims Agency, representatives of the Irish Medical Organisation, IMO, the Irish Hospital Consultants Association, IHCA, and Medical Protection Society, MPS, Ireland insurers and Department of Health officials. I thank all those who assisted my office and me in preparing the draft Bill.

As a car owner, the Acting Chairman cannot drive a car without insurance. As a solicitor, I cannot practise without insurance. However, there is no legal obligation on a general practitioner to have insurance. That is not to say, however, general practitioners do not have insurance. I imagine 99.9% of all medical practitioners in the country do have insurance. However, concern has been expressed for some time as to whether we can ensure that if a person is offering a medical service and it goes radically wrong, there are adequate safeguards in place to compensate someone who may suffer a loss. This issue came to the fore in 2008 and 2009 in the case of cosmetic surgery and breast implants, although in the end I do not believe it was an issue.

One new issue arising relates to where persons offering services have insurance and the question is whether they have adequate insurance. I refer, in particular, to the growing tendency to offer scanning services. There is a question as to whether the insurance people have is adequate to cover the service. As legislators, we have a duty to ensure the public is protected. The idea behind the Bill is to ensure it would be compulsory for all medical practitioners to have insurance. The HSE provides cover for all of its employees engaged in medical services. However, there are people working in a private capacity as medical practitioners and we need to ensure adequate safeguards are in place.

The Bill is self-explanatory in the sense that it would amend the Medical Practitioners Act 2007. Reports have been produced in the United Kingdom where there is a similar problem. The Finlay Scott report of 2010 involved an examination of the issue of professional indemnity insurance in the United Kingdom. One recommendation in that report read:

In my judgement, making insurance or indemnity a statutory condition of registration is the most cost effective and proportionate means of achieving the policy objective. The main reasons are:
a. A statutory condition of registration would apply equally and unequivocally to all registered healthcare professionals; would be seen by patients and the public to do so; and would enhance patient and public confidence.
b. A statutory condition of registration has the unique advantage that, when supported by appropriate powers, enforcement action can be taken through low cost administrative procedures rather than high cost fitness to practise procedures.
c. As a result, a statutory condition of registration would reduce enforcement costs compared with alternatives, without increasing compliance costs or the costs of compliance testing.
d. A statutory condition of registration would require the registrant to be able to prove a positive, namely the presence of cover, rather than the regulator to prove a negative, namely the absence of cover.

We took into account various recommendations made in that report in drafting the legislation.

I realise the Bill is imperfect and that it is likely the Department will bring forward some amendments. I would support this because I realise we are all working in the public interest.

The Bill is divided into five parts and contains nine sections. I will outline the various sections and what they seek to do.

Section 1 sets out the Short Title of the Bill and provides for the collective citation. Section 2 provides a definition of the principal Act, that is, the Medical Practitioners Act 2007. Section 3 seeks to amends section 2 of the 2007 Act and proposes to insert four new definitions, including a definition of an indemnity provider. It is important that there be a distinction between an insurer and an indemnity provider. For example, MPS Ireland provides cover, but it is not an insurance company; rather, it is a medical protection society.

It is not an insurance company but it is a medical protection society which offers cover to the vast majority of medical practitioners in this country. Section 3 defines the terms "clinical indemnity scheme", "professional indemnity committee" and "professional indemnity cover". Section 4 operates a clinical indemnity scheme.

Section 4 amends section 10 of the 2007 Act by substituting a revised text of subsection (1), the purpose of which is to expand the immunity of the Medical Council so as to ensure that it will not be held liable for the wrongdoings of medical practitioners in respect of their obligation to hold professional indemnity cover.

Section 5 amends section 11 of the 2007 Act by inserting seven new subsections which empower the Medical Council to make rules specifying each category of medical practitioner who will be required to hold professional indemnity cover. As there are different categories of medical practitioners, from GPs to medical consultants in the private health care sector, various types of cover are needed. Subsection (2C) requires the Medical Council to make rules specifying the indemnity providers which have been recognised. The Act covers both the insurer and the indemnifier. The State Claims Agency is also included because it now has responsibility for dealing with claims against the HSE and can therefore offer considerable expertise that would not otherwise be available. It is important that its role is recognised and its advice taken on board in the guidelines that are being issued. Subsection (2D) states that the Medical Council must not issue a certificate of registration to a medical practitioner unless he or she has provided evidence of the required level of cover being in place. Subsection (2E) permits the Medical Council to specify in its rules the minimum level of cover to be held by practitioners. Subsection (2F) empowers the Medical Council to exempt practitioners from the requirement to hold professional indemnity cover. This would apply in particular to people who are employed by the HSE because they would already have cover.

Section 6 empowers the Medical Council to establish a professional indemnity committee to carry out its functions relating to professional indemnity cover. Section 7 states that it is an offence for a person to practise medicine whilst not being in compliance with the Medical Council?s rules, not having in place professional indemnity cover or falsely representing that he or she has the correct level of cover in place. Section 7 also makes it an offence for a person to contravene new sections 110, 111 and 112 which are proposed to be inserted into the 2007 Act by section 9 of this Bill.

Section 8 inserts a new section 44A into the 2007 Act so as to place a duty on insurers to notify the Medical Council if they become aware that a medical practitioner?s professional indemnity cover has lapsed or been cancelled. Many people pay insurance by instalments but once the insurer becomes aware that payment has lapsed, clearly it would cease to provide cover at a certain point. The section obliges the insurer to notify the council and the individual concerned in such instances so that the situation does not arise whereby somebody who paid the first few instalments subsequently discovers that his or her insurance has been cancelled because the remainder of the premium was not paid.

Section 9 inserts new sections 110, 111 and 112 into the 2007 Act. The proposed new section 110 imposes a general obligation of full disclosure on medical practitioners who are seeking professional indemnity cover. Section 111 provides that where a person or a business, other than a patient, proposes to engage a medical practitioner, he or she is obliged to seek proof of the existence of the required level of professional indemnity cover in respect of that practitioner. This is to cover situations where a locum is hired for a medical practice. Section 112 obliges a medical practitioner to display evidence of professional indemnity cover at his or principal place of practise.

I may not be ticking all the boxes with this draft legislation and I understand that the Department will come forward with amendments. I am happy to work with departmental officials in progressing the Bill. I thank the Minister and his officials for their assistance in drafting it.