The decision by hospital consultants to provide "emergency only" cover from February 26th is a measure of the seriousness of an issue which should never have been allowed to arise, writes Ray Kinsella
There is already serious collateral damage. Firstly, on the part of patients who find themselves in a legal "limbo" in pursuing a claim for malpractice against a consultant who is not covered by the Government's Clinical Indemnity Scheme (CIS), which took effect in February last year.
Equally, there are some 25 consultants who, after a lifetime of providing professional care, face potential financial ruin because they are not included in the CIS and the Medical Defence Union (MDU) has already, or is likely to, decline to indemnify them against a prosecution - even though they (and Government) paid insurance premiums over a long number of years.
There is a shameful deficiency in our existing medico-legal system. Consultants, in particular obstetricians, in seeking to save a baby's life, may find themselves held responsible for the development of cerebral palsy in the child. In pretty well all cases, it is acknowledged that the consultant has not been negligent.
And yet, to ensure the child is adequately provided for, both parents and consultant are forced to engage in adversarial legal proceedings, culminating in the High Court where an award is made against the consultant without admission of liability. This is an emotionally damaging and pernicious system for all.
The key facts of the current dispute are not at all complicated. Over the last decade the Government, which paid some 90 per cent of the cost of medical malpractice insurance, was confronted by a significant increase in the volume and cost of settling claims, most particularly in obstetrics.
In response, the Government introduced a Clinical Indemnity Scheme (CIS) on the basis of "enterprise liability", managed by a State Claims Agency.
A patient now claims in respect of the "enterprise" in which the "care episode" was provided rather than against those providing the care, a very positive innovation. Unfortunately, the CIS was enforced in February 2004 against the wishes of consultants who objected that it did not address any historic claims.
The Government has from the outset taken the view that the MDU has a legal and moral responsibility to provide cover to consultants in respect of such "historic" claims. The MDU has argued that it provided "discretionary" cover, that its premium income did not rise with the costs of claims, and that it has the interests of lower risk members to consider.
The non-legally binding "assurances" provided by the Minister for Health - that neither patients nor consultants would be put at risk - are an inadequate basis for resolving the issue and will not provide it with breathing space or leverage in its negotiations with the MDU.
The MDU has already declined cover for a number of members, leaving those not covered by the CIS very exposed to crippling claims. A plaintiff's legal team would, almost certainly, advise prosecuting a claim directly against a consultant, a wholly unjust position for both patient and consultant.
The Irish Hospital Consultants Association and the Irish Medical Organisation have jointly taken the view that, unless their members are provided with cast-iron guarantees, they will initiate industrial action. This would put patients within an over-stretched acute system at risk, erode trust between Government and the profession, as well as further diluting what little trust the public has in any of the political parties to resolve the pressing A&E crises. The Department does not want the MDU to walk away from what it sees as the latter's obligations to all of its members. But, critically, the latter's protestations that it got its risk evaluation, and hence premium pricing wrong, would be simply blown out of the water, were the issue being addressed within a normal insurance supervisory regime.
For years the MDU (and the MPS, with whom the Government has no issues) have been, as far as the Irish supervisory authorities are concerned, "unregulated entities". The MDU has a joint venture with a British insurer, Converuim Insurance (UK), which is regulated by the UK's Financial Services Regulatory Authority. But neither are overseen or supervised by IFSRA, the responsible authority for supervising commercial insurers, including those who have in the past written MedMal cover which was substitutable for policies written by the MDU.
Some years ago commercial insurers left what they saw as an impossible market, a move that should have set alarm bells ringing.
It is only common sense, moreover, that there should only be a single regulator to deal with both consumer protection and also technical issues such as risk/premium pricing/reserving/solvency/the orderly run-off of claims, whatever the institutional structure - commercial or mutual - of the insurance provider. To deal, over years, with "unregulated entities" is a classic example of regulatory and policy failure, and for the Government to have implemented the CIS, while leaving a number of consultants exposed in terms of cover, only compounded such failures.
The Government standoff with the MDU is based primarily on the principle of financial accountability. But there is a deeper issue. The public interest is now threatened by the prospect of industrial action flowing directly from the failures of government over the years.
Patients' interests should not now be held ransom to an unedifying standoff between the Government and the MDU.
There are three elements needed to close this matter. For Government, this is a time for giving priority to patients' welfare and the natural justice to which medical consultants at risk are entitled over financial costs.
Secondly, reform of the legislation in respect of financial provisions for children with cerebral palsy is now imperative.
Thirdly, the situation whereby "unregulated entities" can provide indemnity, or any other form of cover to any consumers, should be immediately addressed.
Specifically, IFSRA should have responsibility for all aspects of all financial service providers, including insurers.
Aware of the consequences and the likely solidarity among consultants for members left at risk, it was unwise of the Government not to have resolved the issue of historic liabilities at the time.
This is not hindsight. I wrote at the time: "All sides know that, as matters stand, the issue will come to a head, probably sooner rather than later. A claim will be made against a consultant in respect of a historical clinical incident and cover [ by the MDU] may be declined and then ... When the legal and policy pyrotechnics are over, the probability is that the matter will be resolved on a 'second best basis'. There are no winners in these situations."
Ray Kinsella is on the Faculty of the Smurfit Business School, UCD