FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DEPARTMENT OF HEALTH & CHILDREN A - AND - IRISH MEDICAL ORGANISATION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. (a) Alleged breach of Common Contract and breach of Sustaining Progress (SP); (b) compensation for supplementary insurance cover; and (c) uniform threshold of €500,000 for claims in all medical specialities.
BACKGROUND:
2. Earlier this year the Department of Health and Children extended a state based medical indemnity scheme to hospitals to replace their private insurance, known as 'Clinical Indemnity Scheme' (CIS). The Union claims that the Department introduced the Scheme before agreement had been reached. The Department maintains that the inclusion of consultants in CIS was as a result of a Government decision. The Department has been trying unsuccessfully to get Union agreement, action had to be taken in the public interest and also in the interest of the consultants themselves.
Clause 9.4 of the 1997 Consultants Common Contract:
"You shall, as long as required by (the employing authority) and while you continue to hold your appointment keep yourself indemnified against claims arising from malpractice and negligence in relation to your appointment. The (employing authority) shall reimburse you promptly to the extent of ( %) in respect of the cost of such indemnity.
"These provisions may be rescinded by the employing authority and replaced by others in the event of alternative arrangements for the provision of cover against claims for negligence being introduced following agreement between the Department of Health and Children and the Irish Medical Organisation and the Irish Hospital Consultants Association"
The Union regard the Department's actions as a breach of Section 19.8 of Sustaining Progress.
The Union are requesting the Labour Court to issue a recommendation on three matters arising from the unilateral change on the part of the Department of Health and Children relating to:
- The Clinical Indemnity Scheme being introduced in breach of the terms of the Common Contract and the Sustaining Progress provisions regarding the introduction of significant change:
- The need for arrangements for the compensation of Consultants who face more expensive contributions to medical indemnity cover following the introduction without agreement of the Clinical Indemnity Scheme.
- The Organisation's claim to have equivalent state support for Consultants in all specialties on an ongoing basis following the introduction of the Clinical Indemnity Scheme.
UNION'S ARGUMENTS:
3.1 The Department of Health and Children acted in serious violation of the Common Contract and the terms of Sustaining Progress in introducing CIS in the face of opposition by the Union on behalf of its Consultant members.
2. The Union maintains that a significant number of Consultants are now paying greater supplementary premia than they would have in net terms prior to the introduction of CIS (i.e. the 10% or 20% contributions). The Union had sought agreement on compensation in such scenarios prior to the introduction of CIS but no agreement was forthcoming.
3. Since the introduction of CIS , the scale of indemnity cost now being incurred by Consultants is significantly greater. In 1992 Consultants were being reimbursed to the extent of 80% or 90% of their total costs.
4. The Union are seeking that the cap available to Obstetricians be offered to all medical specialities. There has always been uniform arrangements in place regarding the conditions of employment for Consultants regardless of differences in terms of their clinical practice or conditions of employment generally.
5. Some consultants may face difficulties when quoted indemnity rates which seriously jeopardises their ability to practice on the same basis as before.
DEPARTMENT'S ARGUMENTS:
4.1 In 1999, the Government decided that the arrangements in place for the provision of liability cover for health board and hospitals and professional indemnity cover to doctors were no longer sustainable. Commercial insurance companies were withdrawing from the medical malpractice insurance market.
2. Through the CIS, the Department has provided the great majority of Irish doctors with a stable and secure system of professional indemnity cover. The Department has done its best to deal with a difficult and complex problem
3.Clause 9.4 of the Common Contract requires consultants to be "indemnified against claims arising from malpractice and negligence".
4. It has removed the risk of being personally sued from most doctors.
5. It has introduced measures which significantly reduce the cost of indemnity cover for doctors in private practice.
6. The Department rejects the claim that it has breached the terms of the consultants contracts.
RECOMMENDATION:
The issue before the Court concerns the Department’s introduction of a state-based medical indemnity scheme (Clinical Indemnity Scheme CIS) to hospital consultants in place of their existing subsidised private indemnity scheme. Having considered the views of the parties expressed in their oral and written submissions, the Court recommends as follows on the three issues in dispute concerning the scheme: -
Breach of Common Contract and of Sustaining Progress
Having reviewed the terms of the Common Contract, the Court is satisfied that clause 9.4 requires consultants to be “indemnified against claims arising from malpractice and negligence”. This requirement is now being provided by the CIS and in that regard the Court does not accept that the Department’s decision to introduce the scheme without agreement represents a breach of the terms of the Common Contract or of Sustaining Progress.
Additionally, the Court notes that the clause provides for agreement between the Department of Health and Children and the Irish Medical Organisation and the Irish Hospital Consultants Association before “rescinding” or “replacing” these provisions, however, in the circumstances of this case, the Court accepts that the change in policy was one which was implemented following a Government decision and was made in the public interest.
The Court accepts that it is unusual for Government to implement such changes without agreement, however, the circumstances of this case presented a serious once off situation, the solution to which became a matter of public policy and therefore the Court takes the view that this can be considered as aforce majeuresituation.
The Court would urge parties to adhere to the long established practices of consultation and agreement before making changes to agreements.
Provision of Supplementary Cover
The Union seeks payment on an ongoing basis for the extra costs associated in providing medical indemnity cover following the introduction of the CIS. The Court notes that the Common Contract provided for subsidisation of the requirement to be “indemnified against claims arising from malpractice and negligence”. Based on the information submitted by the Department, the Court is satisfied that the Clinical Indemnity Scheme provides indemnity against such claims. Therefore, the Court understands that while the consultants may have been covered in the past for the supplementary issues listed by the Union, the Court is of the view that provision of this level of indemnity is now a matter of individual choice. Therefore, the Court does not recommend in favour of the Union’s claim for the extra costs to be borne by the Department.
Uniform Cap on Indemnity Cover
The Department submit that there are a greater number of claims against obstetricians/gynaecologists and this is reflective of the relative balance of risks associated with these professions. Consequently, the Department introduced a lower cap on the amount of professional indemnity cover, which these consultants in their private practice need to purchase. In view of the history of the level of this claim, the Court understands and accepts the rationale behind the different levels on indemnity cover required.
However, the Court recommends that this situation should be reviewed in December 2005 when an actuarial study should examine the relative level of risks associated with the various professions and if required adjust the cap accordingly.
Conclusion
The Court is of the view that further efforts should be made on the part of the Department to ensure the greatest clarity and understanding of the workings of the Clinical Indemnity Scheme. The Court recommends that the ‘Scoping Document’ should be discussed and agreed with the Union.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd_November, 2004______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.