In March 2012, section 46 of the National Health Act 2003 came into effect. The legislation states:
“Every private health establishment must maintain insurance cover sufficient to indemnify a user for damages that he or she might suffer as a consequence of a wrongful act by any member of its staff or by any of its employees.”
As outlined in our statement on 4 January 2013, MPS believes that this legislation is unclear and has been in the process of actively seeking clarification on its intended purpose.
MPS’s position
MPS is advised that the vast majority of doctors are not affected by section 46 of the National Health Act. The legislation refers to “a wrongful act by any member of its staff or by any of its employees”. Since the vast majority of doctors are neither “members of staff” nor “employees” of private health establishments, MPS is advised that section 46 refers to employer’s liability cover for non-clinical acts, such as public liability for slips and trips.
The vast majority of doctors are not affected by section 46 of the National Health Act
However, the legislation remains ambiguous for a small number of health professionals who may be deemed to be employed by private health establishments. In the interests of these doctors, MPS is taking a number of steps to seek clarity. We believe that the Department of Health must confirm that section 46:
- Relates to indemnity or insurance for damages arising from non-clinical acts;
- Is intended to indemnify the private health establishment and not the ‘user’;
- Is liability cover and not insurance cover.
MPS has written to the HPCSA to urge them to expedite regulations that require all doctors to have adequate professional indemnity or insurance protection for clinical negligence.
What do MPS members need to do?
Members do not need to take any action at the moment. We will keep members informed of developments through Casebook, the MPS website and e-bulletins. If you have individual or specific queries, please contact [email protected]. Members can of course continue to ask for assistance from MPS with any problem that arises from their professional practice.