A doctor who pays a defence subscription for twenty years tends to think of it as insurance. It is something different. That difference explains why a medical defence organisation sometimes refuses assistance. It also explains why it sometimes accepts a request with conditions, or for one part of a case but not another. This article sets out how discretionary assistance works, drawing on what the organisations themselves publish. It then covers what you can do if the answer you receive is not the one you hoped for.

What discretionary means

The MDU's member guide says that the MDU is not an insurance company. The guide also says that it uses a mutual fund to provide assistance. Its Board of Management may provide any assistance or indemnity at its discretion, under its Memorandum and Articles of Association. Medical Protection's statement of benefits uses similar language. All benefits of membership are discretionary, and what you hold is a right to ask for assistance.

Medical Protection explains how it exercises that discretion. Advisers trained in medico-legal matters consider each request on its individual circumstances, in line with established procedures. The organisation also states that it will never exercise its discretion in an arbitrary and irrational way. The organisations present the model as giving them flexibility to help where a tightly worded insurance contract would not. But you hold no contractual promise of cover for a given type of case.

Where the answer tends to be no

Both organisations publish examples of matters they are unlikely to help with, and both say the lists are not exhaustive. Reading them before you need them is the most useful thing you can do. Medical Protection's examples include:

  • incidents that happened before your membership began
  • deliberate, reckless or criminal acts
  • allegations of fraud
  • personal conduct, unless it comes before your regulator
  • criminal matters arising outside professional practice, such as drink driving or assault
  • partnership, employment or agency disputes
  • fines and financial penalties

The MDU's member guide gives comparable examples. One is defending criminal charges arising from activities not related to the normal treatment of a patient. The guide gives assault of a colleague or motoring offences as examples. Another is matters arising from dishonest, fraudulent or reckless acts, including retrospectively altering records. A third is the costs of pursuing your own grievance or discrimination claim against someone else. Its guide for GP members in Northern Ireland adds legal or other costs you incur without its prior approval.

Two practical points follow. First, a case that begins as a clinical complaint can change character. For example, this happens when an investigation turns to the accuracy of your notes. An allegation of dishonesty sits close to several of the categories above. Second, the timing of your membership matters. Medical Protection describes its membership as occurrence-based. So you can ask for help with a matter arising from an incident during your membership whenever it is notified. Other arrangements work on a claims-made basis. The GMC reminds you that you must keep cover for liabilities whenever a claim is brought, such as run-off cover. A move between providers therefore needs care.

Your obligations as a member

The published terms also impose duties on you. Medical Protection's statement asks members to notify it at the earliest opportunity of any matter that may need assistance. It also asks them to provide full and accurate information. In addition, it asks them to accept its choice of legal representation. It asks them to accept its advice on the conduct of the case as well, including strategy. A failure to disclose full details can lead to the rejection of a request. These are reasonable terms for a mutual fund. They also explain why some doctors fund part of their defence themselves, because they want a particular lawyer or a particular approach.

If the answer is no

A refusal does not change the GMC's timetable, so act on it at once. I would suggest the following order.

  1. Ask for the decision and the reasons in writing. Ask, too, which part of the case the decision covers. An organisation sometimes refuses assistance for one allegation and offers it for another.
  2. Check what you told the organisation when you joined and at each renewal about your scope of practice. If the refusal turns on work you did not declare, gather the correspondence that shows what you did declare.
  3. Ask whether there is a route for a fresh look at the decision. Then send any facts the organisation did not have when it decided. An organisation that exercised its discretion on incomplete information can exercise it again on full information.
  4. Look for other cover. A private hospital, an agency, an employer or a separate policy held for private work may respond to part of the matter. Our guide to who covers locums and private practitioners explains how that cover divides.
  5. Take independent advice on the regulatory case itself while you deal with the funding question. The deadline in a GMC letter does not wait for a dispute about who pays.

If you are a nurse, dentist, pharmacist or other healthcare professional whose union or defence organisation has declined help, the same steps apply, and our pages for each profession set out the regulator's deadlines you must keep while you resolve the funding.

If your defence organisation has said no, Eloquia can act for you on the regulatory case. Our page on what to do when your insurer or defence organisation will not cover you explains how. Eloquia acts on fixed fees by stage, each stated plus VAT, and the fee includes a specialist barrister from the outset. Our fees and funding page sets out each stage.

The GMC's guidance leaves the choice of cover to you. The legal duty in section 44C of the Medical Act 1983 concerns compensation for patients, not your own legal costs. Our article on whether your indemnity covers a GMC investigation explains that gap. So you are free to answer the question of funding a regulatory defence in more than one way. It is a question better answered before anyone raises a concern than after.

Sources

  1. Medical Protection: UK medical membership statement of benefits
  2. MDU guide to Northern Ireland GP membership
  3. GMC: Insurance, indemnity and medico-legal support for doctors
  4. Medical Act 1983, section 44C (indemnity arrangements)
  5. MDU member guide: introduction (not an insurance company, assistance at the Board of Management's discretion), Medical Defence Union
  6. MDU member guide: when we are unlikely to provide support, Medical Defence Union