PROFESSIONAL INDEMNITY INSURANCE (Hansard, 7 May 1993)

§ Sir Nicholas Bonsor
I beg to move amendment No. 54, in page 26, line 33, leave out 'may' and insert 'shall'.
I return to my favourite hobby horse—the difference between "may" and "shall" under clause 36, which is designed to ensure that practising osteopaths are properly insured should anything horrible happen to their patients. I declare an interest in that I am a member of Lloyd's and could be said to have an minor vested interest in whether people insure themselves. My hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) has a more direct interest, as a broker, in seeing that people are properly insured.
Putting aside all such personal interests, I believe that there can be no doubt that it is in the interests of patients for osteopaths to be adequately insured so that, in the awful event of their being negligent and something happening to their clients, they can obtain a remedy in the courts for their injuries. We should not have the appalling incidents, that sometimes occur, where patients successfully sue, but then find that the person sued is a man of straw. In those cases, such patients cannot obtain redress.
Therefore, I am profoundly unhappy that, under clause 36, the general council is left with the discretion to decide whether to ensure that its osteopath members are insured. While osteopathy is a science, not an art, it is an imprecise science. There is no doubt that there are instances where the treatment does not work and those being treated come 434 out worse than when they went in. That is true of most professions and I am not singling out osteopathy, which can be beneficial but can also be harmful.
As a result of my indiscretions as a youth when I drove a fast car, I am a frequent client of osteopaths and, over the years, I have found them to be a mixed bunch. Some of them have done me much good. However, one osteopath who treated me 10 or 12 years ago in Cheshire, who was much used by the Cheshire hunt and had a superb reputation, left me in a state of almost total immobility. I spent half an hour on his couch and came away in excrutiating agony. I returned to London and, following a visit to my usual osteopath, emerged more or less in one piece.
There is no doubt that there are likely to be cases in which osteopaths are sued for what they have done and it is extremely important that they should have the resources behind them so that the person whom they have injured can obtain financial compensation. It is unsatisfactory for the general council to be left with discretion in that matter. I hope that the House and my hon. Friend the Member for Cambridgeshire, North-East will accept the amendment.

§ Mr. Bowis
I entirely endorse the issues raised by my hon. Friend the Member for Upminster (Sir N. Bonsor). It seems osteopathy is now becoming a profession which should require professional indemnity insurance. My hon. Friend mentioned the rules governing insurance brokers, and such insurance is required for them. It is common among professions for indemnity to be a requirement and I see no reason why it should be an option for osteopaths. If the Government have any doubts, I should point out that in previous cases where insurance policies have been lacking, it is inevitably the Government who are asked by the public to compensate someone for something that has gone wrong. It is in the interests of the Government, the profession and the patients that the Bill should read "shall", not "may".

§ Mr. Sackville
I must remind my hon. Friends the Members for Upminster (Sir N. Bonsor) and for Battersea (Mr. Bowis) that the Bill is about self-regulation, not about laying down in detail every aspect of how the profession should be run. The Bill builds on almost half a century of successful self-regulation by the profession, so it would be out of place if we began now to lay specific duties on the profession in respect of insurance. I should like the House to consider the amendment in that light and I ask my hon. Friend not to press it.

§ Mr. Moss
With this amendment my hon. Friend the Member for Upminster raises one of the most important aspects of the legislation. I appreciate the sensitivities that surround the important subject of professional indemnity insurance. I know that the profession takes the matter seriously and I am sure that the general council will consider it with equal seriousness. The profession clearly demonstrated through its voluntary registration scheme that it has a responsible attitude towards patient safety.
The need for practitioners to hold professional indemnity insurance was also a key recommendation of the King's Fund working party report. I am confident, however, that the recommendation did not emanate from a concern that the professionals' attitude was in any way lacking in this area. The amendment brings us back to the 435 debate on whether the general council should be required to make rules or should be allowed to make up its own mind.
I have already made clear my reasons for believing that it would be a mistake to remove from the general council the responsibility for making this decision. Agreeing to the amendment would be to tell the council that we do not trust it to make a sensible decision—a terrible indictment of both council and profession. It would also cut across the principle of self-regulation on which the scheme is to be founded.
I remind the House that the provisions of clause 36 are perhaps the most comprehensive in any health care statutory scheme. They would enable the general council to make rules to require practising osteopaths to hold professional indemnity insurance. The general council would also have the power to check that a practitioner had renewed his cover at the right time and, most important, to initiate disciplinary proceedings if he had not.
My hon. Friend the Member for Upminster referred to a connection with the insurance industry which he and I might have. I remind him that the industry itself is wholly against any mandatory requirement in the legislation requiring insurance of any kind, because that runs counter to selectivity.
I have received a letter from the deputy chief executive of the Association of British Insurers. I received it during the Committee stage, but it is relevant to my hon. Friend's point: I thought that it would be of assistance to you to be aware that the ABI is pleased to see that regulation now leaves the question of professional indemnity insurance to the discretion of the general osteopathic council. This satisfactorily avoids the insurance industry being placed in the position where a refusal to provide professional indemnity to an osteopath might lead to an accusation that he was being deprived of his livelihood by non-availability of insurance. Insurers must retain the right to decline to provide insurance in individual cases and to charge a premium at a level they regard as appropriate but which an osteopath might regard as excessive in his particular case.

§ Mr. Bowis
I hope that we are not seeking to establish the principle that there should never be a requirement for insurance. The cost of insurance may reflect the status and standing of a person or business seeking the cover. That should not be a reason for not requiring insurance but for making sure that those seeking cover reach the required standards. In many instances, legislation requires insurance by employers and public liability companies or professions. I accept what the Minister said about self-regulation. That may be a strong steer from the House that we expect rather than require the taking out of insurance.

§ Sir Nicholas Bonsor
As my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) has not risen, I assume that he does not wish to reply to the last point by my hon. Friend the Member for Battersea (Mr. Bowis). I take issue with the Minister who seemed to imply that, because the Bill is self-regulatory, the House should not lay down any principle by which the excellent people who will make up the general council should abide. The Bill is littered with requirements. Clause 6 states what the register shall show and clause 19 states: The General Council shall prepare and from time to time publish a Code of Practice It also states what the code of practice shall be. Clause 20(12) states: 436 Where the Investigating Committee concludes that there is a case to answer". Throughout the Bill, Parliament in its wisdom has decided what the general council shall do, and rightly so. Although there is to be self-regulation, there is a clear need for central guidance so that the public and the House can have confidence in that self-regulation.
I take note of what my hon. Friend the Member for Cambridgeshire, North-East said about insurance. I also note the desire of the Association of British Insurers that insurance should not be compulsory. I entirely take that point, but I am concerned that the less insurable the osteopath, if I may put it that way, the greater the risk to his patient. If an osteopath is so uninsurable as to make his practice unviable, his clients should be placed in a strong state of red alert before they lie on his couch.

§ Mr. Quentin Davies
Did my hon. Friend have the same difficulty as I had in following the logic of the letter from the deputy chief executive of the Association of British Insurers which was read to us by my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss)? The general council, using the discretion that my hon. Friend would like to see in his Bill, may decide that a rule for registration is that every practising osteopath shall carry professional liability insurance. If that rule emanates from the general council rather than from statute, it will be open to an osteopath who has been refused insurance to claim that the insurance industry is depriving him of his livelihood. The effect on the registered osteopath who has been denied insurance will be the same whether the rule that he has to carry insurance is imposed by the general council or by statute. The difference that the amendment would make to the text of the Bill should make us consider whether we would feel confident that, in all circumstances, osteopaths will carry insurance or whether we have to take it on trust that the general council will use its best judgment in deciding whether to impose such a rule. That is a different issue from the one that was addressed in the letter from the ABI.

§ Sir Nicholas Bonsor
My hon. Friend is right. The logic of the letter from the ABI is that the osteopath should have insurance, but it should not be compulsory. The true state of affairs is that it is more than likely that the osteopath will not have any insurance at all, but that the client will not know that. That is the focus of my concern. I fear that we shall end up with people practising on the margin of their profession, probably with very few personal assets, and that their clients will be at substantial risk.
In the light of what has been said, my amendment would not be appropriate. I ask my hon. Friend the Member for Cambridgeshire, North-East to see whether there is a way to safeguard the client's position in the event of an osteopath practising neither with substantial personal wealth nor with an insurance policy that will cover his client against the consequences of any negligence on his part or any legal liability arising. I hope that the Bill will not proceed through the other place without an appropriate amendment being inserted. I beg to ask leave to withdraw the amendment.