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Seanad Éireann debate -
Wednesday, 24 Sep 2014

Vol. 234 No. 4

Medical Practitioners (Amendment) Bill 2014: Second Stage

Question proposed: "That the Bill be now read a Second Time."

I am pleased to have the opportunity to participate in the debate on Second Stage of the Medical Practitioners (Amendment) Bill 2014. The Bill will make it mandatory for medical practitioners engaged in medical practice to provide evidence to the Medical Council of minimum levels of indemnity cover. It provides that the Medical Council, following consultation with the State Claims Agency, will set the minimum levels of cover. It places a statutory duty on medical practitioners, as they register with the Medical Council, to have indemnity or insurance for liabilities which may be incurred in carrying out work as a registered health care professional. A condition of registration and staying on the register is that a medical practitioner must have the appropriate indemnity cover. He or she must show evidence of this to the Medical Council when he or she first registers and also annually when retaining registration.

There is currently no legal obligation on a medical practitioner to have medical indemnity insurance cover. As a result, some patients and the users of medical practitioner services may be unable to seek redress in the event of a medical mishap or negligent care on the part of a medical practitioner. The Medical Council requests all medical practitioners, on registering for the first time and on annual retention of registration, to confirm whether they have medical indemnity cover. The vast majority have indemnity cover. However, the proposed legislation will place a legal obligation on medical practitioners to have cover and provide evidence that it is adequate for the medical practice in which they are engaged.

Article 4.2(d) of EU Directive 2011/24/EU of the European Parliament and the Council of 9 March 2011 deals with the application of patients' rights in cross-border health care. It obliges member states to ensure systems of professional liability insurance, or a guarantee or similar arrangement, are in place for treatment provided by medical practitioners. The legislation will fulfil Ireland's obligations under the directive in relation to medical practitioners. Similar legislation will be drafted as soon as possible which will apply to other registered health professionals.

The Bill places a statutory duty on registrants to have insurance or indemnity cover in respect of liabilities which may be incurred in carrying out work as a registered health care professional. A statutory condition of registration will be that the medical practitioner must show evidence of indemnity cover. The Medical Practitioners (Amendment) Bill 2014 is good news for patients. It will reassure them that they will be able to obtain redress in the event of a medical mishap or negligent care. To comply with the legislation, medical practitioners must ensure the indemnity cover they have is in accordance with the minimum levels appropriate for their practice. The Medical Council is best placed to ascertain whether doctors have indemnity cover as all doctors who practise in the State must, in compliance with the Medical Practitioners Act 2007, register with the council and retain this registration annually.

The Bill should not require medical practitioners to have any more than what would be the normal indemnity cover which is adequate for the medical practice in which they are engaged. If a medical practitioner is not engaged in medical practice and does not pose a risk to another person in his or her medical practice - for example, a medical practitioner who is a full-time lecturer - there is no legal obligation on that medical practitioner to have medical indemnity cover.

The Medical Council will specify which classes of medical practitioners require indemnity.

The Bill is divided into 12 sections. Section 1 notes that the "Principal Act" referred to in the Bill is the Medical Practitioners Act 2007. Section 2 amends section 2 of the Medical Practitioners Act, to include definitions of the terms used in the Bill. In the Bill indemnity is defined as a policy of medical indemnity insurance or other indemnity arrangement against losses arising from claims in respect of civil liability incurred by a medical practitioner for any act or omission of that medical practitioner arising from his or her practice as a medical practitioner.

Section 3 amends section 7(2) of the Act to introduce a new function for the Medical Council, in that it must specify the minimum levels of indemnity which will apply to various classes of medical practitioners.

Section 4 amends section 11(2) of the Medical Practitioners Act and it gives power to the Medical Council to make rules to specify the evidence that a medical practitioner has to give to the Medical Council to prove that he or she has the appropriate minimum level and how this should be displayed.

Section 5 amends section 36(1)(c) of the Act to allow for a fee to be charged by the Medical Council to put a medical practitioner back on the register where the registration has been removed because he or she failed to provide evidence of the minimum level of indemnity cover.

Section 6 is one of the most important sections in the Bill. It inserts a new section - Section 38A into the Act. This section puts the onus on a medical practitioner to have the level of indemnity appropriate for his or her practice in place at all times while he or she is registered, unless he or she is a medical practitioner who does not require indemnity. A medical practitioner who contravenes this must notify the Medical Council within 14 days.

Section 7 amends section 43 of the Act and requires that the medical practitioner displays at all times where he or she works, the evidence of minimum level of indemnity cover, where practicable.

Section 8 inserts a new section 43A after section 43 of the Medical Practitioners Act. Subsection (1) of this new section requires the Medical Council to publish a notice in Iris Oifigiúil setting out the minimum levels of indemnity which apply to different classes of medical practitioners, following consultation with the State Claims Agency and any other person the Medical Council considers appropriate.

Subsection (2) requires that the notice in Iris Oifigiúil would specify the dates from which the levels of indemnity take effect for different classes of medical practitioners.

Subsection (3) sets out the criteria which the Medical Council must take into account when setting minimum levels of indemnity in respect of certain classes of medical practitioners. This includes the risks identified by providers of indemnity which are particularly associated with the medical specialty practised by various classes of medical practitioners. The criteria also include awards or settlements where the cause of action arose out of an alleged breach of duty involving a member of that class of medical practitioners in his or her capacity as a medical practitioner who falls within that class.

Section 9 amends section 45 of the Act to introduce a new subsection. This section of the Act deals with registration of medical practitioners. The new subsection requires a medical practitioner to provide evidence that he or she has the appropriate level of indemnity. It also provides that a medical practitioner who does not fall into a class of medical practitioners who must have medical indemnity, to provide evidence that he or she is not required to have indemnity. This new subsection also provides that the Medical Council shall not register a medical practitioner who should have indemnity, but does not provide evidence of the indemnity required.

Section 10 amends section 50 of the Act to require that a visiting EEA practitioner may not practise medicine in the State unless he or she furnishes evidence that he or she has the appropriate minimum level of indemnity.

Section 11 inserts a new section, section 80A. into the Act. Subsection (1) enables the Medical Council to remove a medical practitioner from the register if he or she fails to provide evidence of the minimum level of indemnity. Subsection (2) provides, however, that the medical practitioner would not be removed from the register, if the medical practitioner was the subject of a complaint which was ongoing. This power allows the council to proceed with that complaint, whereas if the medical practitioner was no longer registered, the council could not do so.

A further section 80B is added after 80A. This section sets out the steps to be followed by the medical practitioner in order to be restored on the register, for which a fee will be charged by the Medical Council.

Section 12(1) gives the Short Title of the Act - Medical Practitioners (Amendment) Act 2014. Subsection (2) stipulates that the Act will come into operation when the Minister signs a commencement order and different parts of the Bill may be commenced at different times.

The role of the health service is to improve the health and well-being of people in Ireland in a manner that promotes better health for everyone, fair access, responsive and appropriate care delivery, and high performance. The main purpose of the Medical Practitioners Act in 2007 was to protect the public and to have an active system of robust registration and regulation of the medical profession, in order to minimise the risk to the public and safeguard the health and wellbeing of people accessing health services.

The Medical Council is doing an excellent job, in providing an efficient and accountable system for the regulation of the medical profession. The public can be satisfied that registered medical practitioners are both appropriately qualified, and competent to practise in a safe manner. Given the high cost of litigation and the long-term consequences of some adverse events this legislation is to be welcomed as patient-focused and progressive.

I commend the Bill to the House.

I welcome the Minister for Health to the House. This is my first opportunity to welcome the Minister in his new role and I wish him well in his new portfolio as Minister for Health.

I welcome the Minister, Deputy Varadkar and I too congratulate him on his new appointment as Minister for Health. I know that with his medical background and political acumen he will bring a particular dimension to health matters. I have every confidence the Minister will address the issues and problems in a Department that was referred to by a predecessor who had served in that Department - the former Taoiseach, Brian Cowen - as "Angola". I remember on one occasion when listening to Vincent Browne - who visited the Seanad earlier this morning - when this reference was made on a television programme asking the then Minister for Health, Brian Cowen, what did it mean. It was spelled out to him. Angola, following its civil war was full of landmines all over its territory. Perhaps members of the public were not aware of the situation then, but the analogy has stuck. There is a general sympathy and understanding for the Minister with the problems he is facing, by those in these Houses who know the intractable problem the health Ministry has inherited. I know the Minister will be fighting for money but it is not just about money; I hope he will bring his unique experience to solve the problems in the best interests of everybody.

As the Minister said, this Bill is about protecting the patients' interests and providing public confidence in medical services so that people can go to a competent medical practitioner in the full knowledge that if anything happens they are indemnified against negligence that may arise. I understand that in excess of 99% of medical practitioners are already registered for insurance.

I am sure the Minister is aware of some concerns raised by consultants. During the summer the Irish Hospital Consultants Association expressed its grave concern at the decision by the Medical Protection Society, MPS, to significantly increases its charges for clinical indemnification. It is expected that this will result in a growing number of patients seeking care in public hospitals at a time when these hospitals do not have the capacity to treat more patients due to a lack of front-line resources and an insufficient number of consultants. As I said earlier the Minister will face problems and difficulties in this Ministry in terms of providing resources. The increase in charges for clinical indemnification might result in patients using the public service, which will put extra strain on public services. I had a brief discussion with my friend and colleague, Professor Crown, and he believes that may not be the case. It will be interesting to know whether that could happen or is it scaremongering by the Irish Hospital Consultants Association?

The Medical Protection Society, MPS, which is the main provider of clinical indemnity in Ireland stated that the primary reason for the increase is the growth in the cost of settling claims and the lack of progress in reforming the law relating to medical negligence claims in Ireland in contrast with other jurisdictions.

It stated that the summer increases had come on top of previous increases of between 50% and 67% since 2008, including increases of up to 33% in 2013 alone. These are quite significant increases. Does the Minister have an opinion on whether they will have an adverse impact on what he is attempting to do here?

The society has said that medical indemnification is already a considerable cost for consultants. However, I take my cue again from Senator Crown by saying that it would be foolhardy to suggest that consultants would not have adequate cover - they all do. I am talking about those who come into this country, perhaps, or those who set up in this country, as fly-by-night operators. One of the inspirations behind the original 2007 Bill was issues surrounding the cosmetic surgery industry; questions were raised about the way patients were treated in a particular clinic in Dublin. Also, a number of recommendations were made by the working group on medical negligence, chaired by Ms Justice Mary Irvine, which submitted a report to the President of the High Court and the Minister for Justice and Equality with recommendations on the introduction of pre-action protocols, including the related draft legislation. Perhaps the Minister has an opinion on those recommendations. The consultants are seeking the introduction of these changes and other reforms without delay to ensure the continued availability of care for private patients which would otherwise become financially unviable.

The Minister has already given the background by saying that the previous Government introduced the Medical Practitioners Act 2007, which was about enhancing patient safety and is at the heart of the health reform agenda. It was part of a series of Bills that would also bring accountability to health professionals. The Bill was consistent with the then Government's commitment, as outlined in the health strategy, to strengthen and expand the provisions for statutory registration of health professionals, including doctors. If we are to maintain the trust of patients in the doctors who treat them, we need to demonstrate and maintain quality at all levels. The Minister made a strong reference to this aim in his presentation. Patients want to know the service they receive from doctors is based on evidence of best practice and meets the highest standards.

One of the priorities of this legislation, on which I commend the Minister, is to strengthen and clarify accountability. It aims to ensure that members of the public are guided, protected and informed in order that they can be confident that doctors are properly qualified, competent and fit to practise on an ongoing basis.

Before I finish I would like to pay tribute to my colleague Senator Colm Burke, on his Private Members' Bill, the Medical Practitioners Bill, which we debated extensively in this House. I commend him not only on having the initiative to bring forward the Bill but also on the wide consultation that he undertook, which was quite awe-inspiring. He covered the ground extensively and spoke to everybody and anybody in the health area before drafting the Bill. It is a flaw in the whole system of how legislation works in this country that when a Senator introduced a Bill of this quality, which was highly commended by all sides of the House at the time and debated extensively, the Government, when it reached the critical point of moving it to Committee Stage, said "Sorry, we cannot support it, but we will think about introducing our own Bill." That is exactly what has happened. This Bill is an exact copy of the one Senator Colm Burke introduced. There may be some slight changes here and there. That happens to every Bill that goes through Committee Stage, where it is further improved and expanded. I would put on the record that Senator Burke did a great service not only to these Houses but also to the general public, which has resulted in our having this debate today and will ultimately result in the passing of the Bill. I commend the Bill, and we in Fianna Fáil support it. I would appreciate if the Minister could respond to some of the queries that have been raised. Once again, I reiterate that we on this side of the House wish the Minister well in his new Ministry and have a degree of sympathy for his situation.

Debate adjourned.
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