Medical Defence Union Urges Government Not To Water Down Deprivation Of Liberty Safeguards, UK

Main Category: Mental Health
Article Date: 13 Feb 2009 - 1:00 PDT

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Assessments carried out to determine whether it is appropriate for a patient with a mental disorder to be detained for care or treatment by a care home or hospital should only be done by a healthcare professional with insurance in order to help safeguard the rights of vulnerable patients says the MDU, the UK's leading medical defence organisation.

The assessments were introduced as part of the Mental Capacity Act 2005 Deprivation of Liberty Safeguards which are due to come into effect on 1 April 20091. However, the DoH now proposes to amend regulations2 defining the criteria for eligibility of healthcare professionals to carry out the assessments, so that assessors will no longer need to prove they are "insured in respect of any liabilities that may arise". Instead it is proposed that they will only have to show that they have an "adequate and appropriate indemnity arrangement which provides cover in respect of any liabilities that might arise." This may be a policy of insurance, an arrangement made for the purposes of indemnifying a person, or a combination of the two. While this change is proposed to include healthcare professionals who are covered by NHS indemnity, which is not insurance, this amendment would also have the unfortunate effect of allowing indemnity to be provided on a discretionary basis.

Dr Christine Tomkins, MDU Deputy Chief Executive explains: "This proposal would weaken the safeguards for vulnerable patients as if there is no contract of insurance, how can someone harmed by a negligent deprivation of liberty assessment be sure they will receive their rightful compensation? We believe that the current regulations already allow for NHS indemnity and there is no need to change them. The amendment proposed is an unnecessary dilution of the existing regulations and risks allowing discretionary indemnity by the back door.

"Doctors who are reliant on discretionary indemnity have no right to be given assistance with a claim; only to seek assistance and for that request to be considered. The decision to indemnify or not can only be made when they present the indemnifier with the facts of the case for which they are seeking help. By contrast, insurance is regulated and provides a contractual right to assistance, subject only to the terms of the policy. This is an important distinction as far as the interests of patients and the public are concerned, because regulation provides a high degree of consumer protection that is not available with unregulated financial services.

"For example, an insurance policyholder who is refused assistance is entitled to an explanation for that refusal and has a range of other options such as asking the Financial Ombudsman Service to investigate or taking legal action. A discretionary organisation is not obliged to give any reasons for the refusal and, as there is no contract of indemnity, doctors reliant on discretionary indemnity cannot seek redress for breach of contract. Insurance is also supported by the Financial Services Compensation Scheme which exists to pay claims in the event that an insurer or other provider of financial services fails. Discretionary providers do not come within this scheme and their members and their patients do not have this protection."

Further information

1 The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 (England), OPSI, 9 July 2008

2 Consultation on the Mental Capacity (Deprivation of Liberty: Monitoring and Reporting) and (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) (Amendment) Regulations 2009, DoH, 19 December 2008

From April 2009, care homes or hospitals, which believe it is necessary and in patients' best interests to deprive them of liberty in order to provide care or treatment, must apply for authorisation from a supervisory body, usually a local authority or PCT. These supervisory bodies must then ensure that the patient is properly assessed to determine whether deprivation of liberty would be appropriate. The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 (England), which came into effect on 3 November 2008, set out the eligibility requirements for those who can carry out such assessments, including their qualifications, skills and training. The DoH consultation concerns amendments to these regulations.

The MDU

The MDU is a mutual, not for profit, organisation owned by our members who include over 50 per cent of the UK's hospital doctors and GPs. Established in 1885, we were the world's first medical defence organisation. We defend the professional reputations of our members when their clinical performance is called into question. Our benefits of membership include insurance for claims of clinical negligence and a wide range of medico-legal advisory services.

The MDU