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BILLE NA LIA-CHLEACHTÓIRÍ (LEASÚ), 2012 MEDICAL PRACTITIONERS (AMENDMENT) BILL 2012

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Mar a tionscnaíodh As initiated

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ARRANGEMENT OF SECTIONS PART 1

Preliminary and General Section

1. Short title, collective citation and commencement.

2. Interpretation.

PART 2

Obligation to Hold Professional Indemnity Cover 3. Amendment of section 2 of Principal Act.

4. Amendment of section 10 of Principal Act.

PART 3 Offences

PART 4

Lapse or Cancellation of Professional Indemnity Cover 8. Insertion of new section 44A into Principal Act.

PART 5

Proof of Existence of Cover

9. Insertion of new sections 110, 111 and 112 into Principal Act.

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[No. 119 of 2012]

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Explanatory Memorandum

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Acts Referred to

Medical Practitioners Act 2007 2007, No. 25

National Treasury Management Agency (Amendment)

Act 2000 2000, No. 39

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BILL

entitled

AN ACT TO PROVIDE FOR MANDATORY PROFESSIONAL 5

INDEMNITY COVER FOR CERTAIN MEDICAL PRAC- TITIONERS; TO CONFER ADDITIONAL FUNCTIONS ON THE MEDICAL COUNCIL; AND FOR THAT PUR- POSE TO AMEND AND EXTEND THE MEDICAL PRAC-

TITIONERS ACT 2007 AND TO PROVIDE FOR

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RELATED MATTERS.

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Preliminary and General

1.—(1) This Act may be cited as the Medical Practitioners 15

(Amendment) Act 2012.

(2) This Act and the Medical Practitioners Act 2007 may be cited together as the Medical Practitioners Acts 2007 and 2012.

(3) This Act comes into operation six months after its passing.

2.—In this Act “Principal Act” means the Medical Practitioners 20

Act 2007.

PART 2

Obligation to Hold Professional Indemnity Cover

3.—Section 2 of the Principal Act is amended—

(a) by inserting the following after the definition of “Higher 25

Education Authority”:

“ ‘insurer or indemnity provider’ means—

Short title, collective citation and

commencement.

Interpretation.

Amendment of section 2 of Principal Act.

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(i) a financial services entity which is licensed by the Central Bank of Ireland to issue policies of insurance in the State,

(ii) an indemnity provider which has been approved by the Council pursuant to Rules made under 5 section 11(2C);”,

(b) by inserting the following after the definition of “chief executive officer”:

“ ‘Clinical Indemnity Scheme’ means the scheme adminis- tered and managed by the State Claims Agency, for the 10 purposes of section 9(1) of the National Treasury Manage- ment Agency (Amendment) Act 2000;”,

(c) by inserting the following after the definition of “profes- sional competence scheme”:

“ ‘Professional Indemnity Committee’ means the 15 committee established under section 20(4A);

‘professional indemnity cover’ means:

(i) an agreement between a medical practitioner and an insurer or indemnity provider by virtue of which the patient is compensated for losses 20 suffered by reason of the medical practitioner’s practise of medicine, including actual or alleged medical negligence, and

(ii) which is wholly consistent with the guidelines published by the Council under section 25 11(2B);”.

4.—Section 10 of the Principal Act is amended by substituting the following for subsection (1):

“(1) No person to whom this subsection applies, acting in good faith, shall be personally liable in any civil proceedings 30 for—

(a) any act done or default made in the performance or purported performance of any function under this Act, or

(b) any breach of duty by a medical practitioner in respect 35 of obligations imposed on a medical practitioner pursuant to rules made under section 11(2A) provided the Council has acted reasonably in the circumstances.”.

5.—Section 11 of the Principal Act is amended by inserting the 40 following after subsection (2):

“(2A) (a) The Council shall make rules specifying each cate- gory of medical practitioners who shall, in the public interest, be obliged to hold professional indemnity

cover. 45

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(b) Without prejudice to the generality of paragraph (a)—

(i) a medical practitioner shall be obliged to hold professional indemnity cover in respect of any claims arising from his or her medical practice 5

including those claims which may arise after the date on which he or she ceases to practise for whatever reason;

(ii) a medical practitioner who is a participant in the Clinical Indemnity Scheme and whose practice 10

is wholly within the terms of that Scheme shall be deemed to have complied with the requirement to hold professional indemnity cover.

(2B) The Council shall, having consulted with the State Claims Agency, publish on its website guidelines as to the form 15

and scope of professional indemnity cover to be held by medical practitioners.

(2C) The Council shall make rules specifying the indemnity providers which are recognised by it for the purpose of providing professional indemnity cover to medical practitioners.

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(2D) The Council shall not issue a certificate under section 43 to a medical practitioner unless the medical practitioner has furnished to the Council written evidence of there being in force the required level of professional indemnity cover.

(2E) When making rules under subsection (2A) or 25

publishing guidelines under subsection (2B), the Council may, by reference to the speciality of each class of medical practitioner, specify the minimum level of professional indemnity cover to be in force for each category of medical practitioner having regard to—

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(a) the public interest, and

(b) the risk posed to the public interest.

(2F) When making rules under subsection (2A), the Council may specify any such exceptions to those rules as may be consistent with the objects of the Council under section 6.

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(2G) The Council may from time to time conduct audits of medical practitioners in order to ascertain the level of compliance with the rules made under subsection (2A) or the guidelines published under subsection (2B).”.

6.—Section 20 of the Principal Act is amended by inserting the 40

following after subsection (4):

“(4A) Without prejudice to the generality of subsection (1) the Council may establish a committee, to be known as the Pro- fessional Indemnity Committee, to perform the functions under subsections (2A) to (2G) of section 11.”.

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Insertion of new section 44A into Principal Act.

PART 3 Offences

7.—Section 41 of the Principal Act is amended by inserting the following after subsection (4):

“(4A) A person who practises medicine or purports to prac- 5 tice medicine, irrespective of whether that person is a registered medical practitioner, is guilty of an offence if the person—

(a) fails to comply with the rules made pursuant to section 11(2A),

(b) fails to maintain professional indemnity cover at all or 10 at the level required by guidelines published under section 11(2B), or

(c) falsely represents that he or she has the required pro- fessional indemnity cover in place.

(4B) A person is guilty of an offence if the person contra- 15 venes sections 110, 111 or 112.”.

PART 4

Lapse or Cancellation of Professional Indemnity Cover

8.—Part 6 of the Principal Act is amended by inserting the follow-

ing section after section 44: 20

“Lapse or cancellation of cover.

44A.—(1) Where—

(a) a medical practitioner is required to hold professional indemnity cover by virtue of rules made under section 11(2A) or at the level required by 25 guidelines published under section 11(2B), and

(b) an insurer or an indemnity provider becomes aware that such cover has lapsed or has been cancelled for any 30 reason,

the insurer or indemnity provider shall notify in writing both the medical practitioner and the Council of that fact as soon as practicable.

(2) Upon receipt of a notification under subsec- 35 tion (1), the Council shall write to the medical practitioner seeking written confirmation and proof that the required professional indemnity cover is in place.

(3) Where the medical practitioner fails, within 40 30 days to respond, or respond in an adequate manner to a request made of him or her pursuant to subsection (2), the Council shall refer the

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matter to the Preliminary Proceedings Committee pursuant to section 57(1)(f).”.

PART 5

Proof of Existence of Cover

9.—Part 13 of the Principal Act is amended by inserting the 5

following section after section 109:

“Duty of disclosure.

110.—In procuring professional indemnity cover, and at all times during the course of such cover, a medical practitioner shall make full disclosure of all relevant facts to his or her insurer 10

or indemnity provider.

Existence of professional indemnity cover.

111.—(1) Any person who proposes to engage a medical practitioner on either—

(a) a contract of service, or (b) a contract for services, 15

shall, prior to such engagement, require the production of written evidence of there being in force the required level of professional indemnity cover in respect of the medical practitioner.

(2) For the purposes of this section, the term 20

“engages” does not include the engagement by a patient of a medical practitioner for the purposes of the provision of medical care or services to that patient.

Display of professional indemnity certificate.

112.—A medical practitioner who, pursuant to 25

rules made under section 11(2A), is required to hold professional indemnity cover shall display evidence of such cover in a prominent position at their principal place of practice.”.

Insertion of new sections 110, 111 and 112 into Principal Act.

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EXPLANATORY MEMORANDUM

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Background

There is currently no statutory obligation on medical practitioners to hold professional indemnity cover. In contrast, financial intermediaries, solicitors and a whole host of other professionals are obliged to hold professional indemnity cover. In view of the nature of their work, it seems implausible that medical practitioners are not currently required to hold such cover.

Paragraph 50.1 of the Medical Council’s ‘‘Guide to Professional Conduct and Ethics for Registered Medical Practitioners’’ simply states that medical practitioners ‘‘must ensure’’ that they have

‘‘adequate professional indemnity cover for all healthcare services’’

provided. This cannot be equated with a statutory obligation to have in place such cover and consequently patient protection measures are not what they ought to be.

In 2009, when in opposition, the current Minister for Health, James Reilly TD published his own Bill — Medical Practitioners (Professional Indemnity) (Amendment) Bill — for the purpose of introducing a requirement for professional indemnity cover for medical practitioners.

Purpose of the Bill

The purpose of this Bill is to require medical practitioners to hold professional indemnity cover and to confer responsibility for administering and enforcing the terms of this Bill on the Medical Council.

Provisions of the Bill

The Bill is divided into five Parts and contains nine sections, the effect of which are now summarised.

Section 1 sets out the short title of the Bill and provides for the collective citation of the Bill. Section 1 also provides for the commencement of the Bill six months after the Bill has been passed by the Houses of the Oireachtas.

Section 2 provides a definition of the term ‘‘Principal Act’’ so that it refers to the Medical Practitioners Act 2007.

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Section 3 amends section 2 of the 2007 Act so as to insert four new definitions, those being ‘‘insurer or indemnity provider’’, ‘‘Clinical Indemnity Scheme’’, ‘‘Professional Indemnity Committee’’, and

‘‘professional indemnity cover’’.

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 the Medical Council 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. Subsection (2A)(a) empowers the Medical Council to make rules specifying each category of medical practitioner who will be required to hold professional indemnity cover. Subsection (2A)(b) also provides that a medical practitioner is obliged to hold cover for claims which arise even after his or her practice has ceased.

Subsection (2A)(b) also clarifies that a medical practitioner who is a member of the Clinical Indemnity Scheme will be deemed to have met the requirement to hold professional indemnity cover.

Subsection (2B) provides that, following consultations with the State Claims Agency, the Medical Council is required to publish guidelines which stipulate the type of cover which medical practitioners are required to hold.

Subsection (2C) requires the Medical Council to make rules specifying the indemnity providers which have been recognised.

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. Subsection (2G) provides that the Medical Council may carry out random checks for the purpose of ascertaining the degree of compliance with the requirements concerning professional indemnity cover.

Section 6 empowers the Medical Council to establish a Professional Indemnity Committee to carry out its functions relating to medical indemnity cover.

Section 7 states that it is an offence for a person to practise medicine whilst either, not being in compliance with the Medical Council’s rules, or 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 sections 110, 11 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. Section 44A(2) provides that having received notification under section 44A(1), the Medical Council must then write to the medical practitioner in order to seek proof that the required cover is in place. Section 44A(3) states that where the medical practitioner fails to respond, or responds in an inadequate

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way to the Medical Council’s request, then the Council is obliged to refer the matter to its Preliminary Proceedings Committee.

Section 9 inserts three new sections 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.

Section 112 obliges a medical practitioner to display evidence of their professional indemnity cover at their principal place of practise.

Senator Colm Burke, December, 2012.

Wt. 60346. 629. 12/12. Clondalkin. (34234). Gr. 30-15.