The question that dental professionals, dental professional bodies, indemnity providers, patient groups, and the government, within their respective roles, appear to be trying to answer is: ‘What is appropriate cover?’
The answer seems very simple.
Appropriate cover should be defined as a non-discretionary, regulated policy of professional liability which covers the dental professional, within the terms of that policy, for their treatments of patients:
- In the present
- In the future in perpetuity (irrespective of whether the professional remains with the provider, retires, takes on a teaching role, transfers to crown indemnity or moves abroad)
- For all past treatments on a contingency basis if a professional’s previous indemnifier fails to cover the professional for whatever reason.
This along with full representation at the GDC should be the solution.
Taylor Defence Services Ltd and TDS E&W Ltd (TDS) have this solution. For the past 12 years, they have partnered with global insurance broker, Gallagher, and now provide non-discretionary, regulated, loss-occurring insurance policies for both individual dental professionals and dental entities, with built-in contingent past cover by way of a prior acts clause.
With complaints, litigation and regulatory referrals on the rise, a dental professional’s career and financial wellbeing are too important to risk by not having appropriate professional liability cover in place.
The Solution for indemnity cover
- Regulation of all dental indemnity providers addresses:
- The issue of the indemnity provider and their contractual obligation to meet the cost of any claim
- The obligation to ensure the indemnity provider has the reserves to cover the cost of claims, thus decreasing the risk of a patient being unable to access appropriate compensation, or the healthcare professional being left to pay the claim themselves
- The issue that the provider needs to disclose their full financial position, meaning that healthcare professionals become aware of the extent of the indemnity provider’s financial cover
- The issue of leaving healthcare professionals at risk of unfair treatment.
- Non-discretionary cover addresses the issue of having contract certainty
- Loss-occurring policy addresses the issue of cover in perpetuity and the fact there is no need for run-off cover
- Entity cover, meaning all entities such as dental professionals, principal dentists, limited companies, and partnerships have access to a policy which addresses the issues of vicarious liability and non-delegable duty of care
- Contingent past cover by way of a prior acts clause: if your previous indemnifier fails to provide cover, in writing, then the policy will be triggered via the prior acts clause. This addresses the issue of past liabilities, and liquidity of medical defence organisations (MDOs) and other providers, giving peace of mind to clinicians and patients.
The requirements for a practicing dentist to hold professional liability cover are found in the Dentists Act 1984 at section 26A, subparagraph three:
For the purposes of this section, ‘appropriate cover’, in relation to practice as a dental practitioner, means cover against liabilities that may be incurred in practising as such which is appropriate, having regard to the nature and extent of the risks of practising as such.
Government consultation paper
In December 2018, the Department of Health and Social Care launched a consultation paper seeking the views of healthcare professionals who are not covered by an existing or state-backed scheme.
The government launched the consultation due to their concerns about the stability of the current forms of indemnity cover. They set out the concerns surrounding discretionary indemnity on pages three and four. The consultation ran from 6 December 2018 to 28 February 2019.
The government sought views in relation to two options:
- Option one: leave arrangements as they are
- Option two: change legislation to ensure that all regulated healthcare professionals in the UK not covered by a state-backed indemnity scheme hold appropriate clinical negligence cover that is subject to appropriate supervision, in the case of UK insurers, by the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA).
The government’s preferred option is option two.
GDC revisions on professional liability
Likewise, the General Dental Council (GDC) has recently proposed revising its guidance on professional liability and the questions the dentists should be asking of the indemnity provider when they seek cover. This is very welcome and should crystallise the important questions to ask of the indemnity providers.
The GDC, within their proposed revised guidance, state the dentist’s first question to indemnity providers should be: ‘Will this product ensure that I can meet any liabilities to patients in all circumstances?’
This is exactly the first question that should be asked. Helpfully, the second question the GDC propose the dental professional asks themselves is, ‘If not, what alternative or additional products might I need to meet my obligations to patients?’
Essentially, what is required is a regulated, loss-occurring policy of indemnity for individual dental professionals and/or entity cover with contingent past cover by way of a prior acts clause.
The GDC also identify some other issues such as a dentist being left personally liable.
Interestingly, the government identified these financial consequences issues in 2018 at paragraphs 4.15, 5.10 and 5.11 in the consultation paper. In the second part of paragraph 5.32, the government are looking at the liquidity of the MDOs and the effect of legislation if there is a change to ‘all insurance’ models.
When a dentist transfers from another provider, the most crucial issue (remembering the GDC’s proposed guidance is that the cover is provided ‘in all circumstances’) is whether the previous provider guarantee will cover the period the dentist was their client/member. Or, will the new provider pick up the past liabilities in the event the previous provider declines to cover the dentist?
The issue of liquidity of the MDOs is irrelevant to any dental professional or legal entity involved in the practice of dentistry when they join TDS, given that these policies have the above endorsed prior acts clause.
The key points for dentists to consider are:
- Past claims – The policy via TDS & Gallagher includes a ‘prior acts clause’ and will cover any claims if the dentist’s previous indemnity with a defence union fails
- Present claims – claims made whilst the dentist is insured with TDS/Gallagher
- Future claims – when the dentist retires from dentistry, the TDS/Gallagher policy will continue to cover claims (no requirement to buy expensive run off cover)
- Dentist-specific advice – TDS has the clinical and legal expertise to assist with enquiries and support dentists through a claim
- Wide cover – £10,000,000 policy limit, up to £250,000 for GDC investigations, coroner’s inquests and other regulatory body hearings.
A Dentist Medical Malpractice policy arranged by Gallagher and underwritten by CNA Hardy, when added to the TDS service contract provided by experiences dento-legal advisers, is a formidable offering to resolve the issues of indemnity for the whole profession.
For more information about TDS, visit their website here.