Positive Health Online

1. Journey to the Bridge – How our schemes for health professionals evolved

It was at one of those times in a life... a crossroads-kind of time. I knew that I had to make a decision about earning a living in the future! I was a musician, aged 21, and was still recovering from a trek overland to India which happened when I was 19. It lasted 11 months and whilst it helped me to break out of my suburban-induced sleepwalk, it also saw me getting ill with a number of various ailments, culminating in infective hepatitis which brought me close to death's door.

One of the positive things about the experience was that I began to take more of an interest in health matters and diet, and met people on the road from the West Coast of the USA, where some of the new (some would say old) ideas such as Macrobiotics were beginning to get popular. I found that eating more consciously and changing to a vegetarian diet helped me feel better in myself, and also fitted in with my changing world view. When I got back to the UK, I carried on living this way, much to the chagrin of my parents. Two cooks in one kitchen with two different philosophies was a certain recipe for friction!

On return to the UK in 1969, I pursued my path as a musician, which led me to meet many different people, brought me into the sphere of healing and eventually into training to be a Yoga Teacher. At this time the career change was happening and I decided to try and enrol to learn Naturopathy and Osteopathy. I was told to come back once I had got O and A level Science subjects, so I pursued that no further and I decided for various reasons (some even philosophical) to join the family insurance business! And this, as they say, is where the story really begins!

In 1977 I had a serious accident which was not properly treated by the Medical Profession, resulting in wounds that did not heal for some 7 years. A number of my contacts and friends during that period were practitioners of different types of Complementary Medicine. A well respected colleague contacted me one day and said that he perceived there was a need for a policy to protect the therapist for all of their modalities, rather than an inflexible block policy which only covered one particular therapy or approach. At that time, Complementary Medicine was still very fringe, and the underwriters – although very polite – were not overly enthusiastic. Some cheap but limited forms of cover were already available, but only for certain approved organisations.

The idea sat on the back burner until I was approached again, this time by the eminent pioneering Consultant Physician Alec Forbes and some other colleagues who were involved in an organisation called New Approaches to Cancer. They were looking for a Private Medical Insurance to include treatments at the Bristol Cancer Help Centre. Although the scheme did not get off the ground (the market was not ready for it), it eventually led to me getting the Professional Indemnity Scheme organised and after much negotiation a Private Complementary & Mainstream Medical Insurance Scheme (through PPP Medicalcare) which was launched in 1991 at the Olympia Health Show.

The schemes were called "Bridge" – which is about bringing the mainstream and the non-conventional together. The mission was to provide quality advice and wide ranging protection to Health Professionals, especially those in Complementary Medicine, and to literally "care for the carers". All this was happening at a time when the movement was gathering momentum and practitioners were trying to become more organised and professional. Image was beginning to be more important as the movement was much more in the Public Eye, and quality Insurance protection in an ever more litigious climate was beginning to become an important issue. Unfortunately, it seems that incidents and solicitors' letters to practitioners are becoming more frequent these days. Insurance is a key indicator as to the attitudes and choices made by a professional association or individual therapist – and a key protector – that is becoming even more important than it was in those early days, when there was more goodwill and possibly less hype about complementary medicine.

2. Insurance issues around conduct of practice and professionalism

Insurance is an important aspect of professionalism. In the Report and Survey by the British Medical Association which set about trying to define "Good Practice" for Complementary Therapists from their perspective, they suggested that the Public and presumably also any other Conventional Medicine Practitioner in seeking the help of a Complementary or Alternative practitioner should ask the following questions:

* Is the therapist registered with a professional organisation?
* Does this body have a public Register?
* Does it have a code of practice and conduct?
* Does it have effective disciplinary procedures and sanctions?
* Does it have a complaints mechanism?
* What qualifications does the therapist hold?
* What is the type, length or quality of training undertaken to obtain these qualifications?
* How many years has the therapist been practising?
* Is the therapist covered by Professional Indemnity Insurance?

Whilst there are a number of legal and ethical principles involved in conducting a practice (which are outside the scope of this article), the simple facts are that as a professional, you are required to display reasonable care and skill and as a Health Professional you also have a duty of care. You can be held liable at Law for any alleged breach of that duty. Note that this does not just mean liability if you injure someone or damage their property! There is further confusion caused by the fact that many people do not fully understand the difference between a professional indemnity cover, medical malpractice and liability wordings extended to include treatment. There are professional conduct issues that have nothing to do with treating or advising in the typical therapeutic encounter. They revolve around the quality of communication, relationship and behaviour. A suitably worded professional indemnity wording can go a long way to protecting against allegations of misconduct, although not for any allegations of criminal activity. A large number of policies are assumed or portrayed as Professional Indemnity Policies, and yet are nothing of the kind.

I have heard of a number of incidents where a practitioner's policy has not paid out, and financial catastrophe has resulted. I have dealt with and heard about a number of incidents in the course of practice, which would not have been covered under most policies available. One does not even have to be guilty to end up with an expensive lawsuit to clear one's name. I know of practitioners who have given up because of allegations made; these things are stressful enough and if on top of all this, your policy does not cover you for the incident, it could be the final straw. Whilst no policy can cover all eventualities, it is in my view important to get the widest wording with the fewest exclusions one can find. I believe that short-term financial gains in Insurance are short sighted. When compared with many other professions, the premiums at the present time for therapists are generally small, many being below œ100. This is partly because the covers are generally not as wide, and also because the claims experience is not particularly bad. How long these can be sustained, remains to be seen. We are certainly seeing more incidents and allegations now than we did in previous years, and the cumulative effect on this could lead to a rise in rates.

Some policies look very wide on the surface, but when you look at the exclusions, for example excluding diagnosis unless patient is referred on to a Doctor, the cover is not as comprehensive and transparent as one would suppose. As some insurers seem unwilling or unable to state categorically what they intend by a particular part of their wording and how they would interpret it, we are all somewhat in the dark as to what would actually happen if an incident occurred. As I understand it, it is the intention behind a contract which carries weight, and if this can be substantiated, then the absence of specific exclusions may not mean that a particular situation is definitely covered. Here are a few scenarios and questions for you to consider...

We had a recent claim where a practitioner received a solicitor's letter out of the blue, alleging slander against another practitioner (their client), which was causing that practitioner to lose clients and students who were coming over to him. Does your policy cover libel or slander? Many do not.

What if a patient confides or lets slip that they are a child molester or a criminal, do you tell anyone? What if the client finds out? What if your patient who might even be a successful businessman, sportsman or celebrity loses work or income because they allege confidential information about their physical or mental condition or any other confidence has leaked to their employer or becomes public knowledge?

What if you give advice to someone about the damaging effects of their present lifestyle, and they follow your advice to change their lifestyle which leads to them changing their job and someone else, for example, their previous employer, having lost their star sales director decides to pursue for compensation?

What if you have a first aider's certificate, and you tend someone at the scene of a road accident, and that someone alleges that you have made things worse?

What if you help someone out or give advice at a social event? Is that defined as being "in the course of the business"?

Does your policy cover legal costs and fees on top of the indemnity limit, or only within it?

If you changed your policy or stopped it at some time, have you checked that there is ongoing cover – if so, on what basis? Might you be paid a consultancy fee for advice on Health, Lifestyle or Workplace Matters, but not actually treating anyone?

Would you be covered if you were asked for an opinion by a colleague, but were not directly treating the patient? What about causing someone financial loss or breaching a confidence as a result of giving a professional opinion in court? What if you were being paid as an expert witness? Whilst you have immunity in court, it is not quite so clear about the position pre-trial.

For 99% of the time, life goes on and one never has to call on the policy, but if ever you do, it is good to know that you will get support and guidance at a time when stress levels are high, and fingers are being pointed at you. If your policy does not cover you for an event, you will be left to sort the problem out for yourself and of course, pay for it.

3. Professional Associations: complacency or quality?

If Insurance is such an important issue, why is it that so many practitioners, and even their professional associations, seem to have a blind spot about the subject? Even when they investigate and negotiate insurance packages, there is a tendency for their minds to become numbed as the process unfolds. Perhaps image and public opinion have their part to play. Historically, policy wordings – which are legal contracts – are often written in abstruse legal terminology, and because the meanings are not always clear, there is unease that something may be misunderstood or missed. This can lead to mistrust and lack of confidence, or the other extreme, which is to disregard exclusions or limitations on cover, because it is easier to take a line of lesser resistance. The somewhat negative image of the Insurance Industry does not help matters, even though the truth is that a large number of policyholders protected by various kinds of Insurance over the years, have been well looked after by intermediaries and insurers in times of need.

Unfortunately, a number of associations and professional bodies, after advice, have taken on board Insurance Covers that have either serious gaps in cover or policies with somewhat ambiguous clauses, and for a number of these groups, there has been an attitude ensuring that the status quo regarding such schemes is usually maintained.

The main factors regarding this unwillingness to move from such a stuck position usually are :

* the premiums are low

* the intermediary has confirmed they have comprehensive cover

* the membership generally adopt a passive stance, relying on the Professional Association

* The Association can retain members with the insurance, and it is usually one of the main reasons for staying with it

* many organisations insist on compulsory insurance to keep rates low (as well as ensuring that members are insured). This can cause extra expense to practitioners who use other modalities or have other activities, such as teaching, which they may have to insure for elsewhere. A large number of practitioners are obliged to take out a number of policies, if they belong to more than one organisation.

If the Insurance is inadequate to provide all-round protection, this can have potentially dangerous consequences. We were advising a large professional body in one of the Professions Supplementary to Medicine recently, who discovered that for years many privately practising members had had no insurance, due to a misunderstanding of the wordings, and inadequate advice. It had not been appreciated that in addition to treating people or advising them, there are situations where pure financial losses can be alleged and injury or medical malpractice has not taken place. A number of their members had been doing consultancy work, writing medico-legal reports, and being expert witnesses, and also advising local councils on building modifications and many other activities, none of which involved treatment! There was also no cover for Breach of Confidentiality and other conduct-related issues. The block scheme was totally inadequate, but they had thought that it was, and it caused a great degree of sustained anger and criticism, which had a series of negative effects on the organisation over a period of years.

Confidence and Membership was lost.

4. Make money or excuses?

Whenever I introduce the concept of wider cover to include the "conduct of occupation" rather than cover for "treatment or advice in the course of the business" (as is so often seen in policy wordings), I have been given many similar responses over the years.E.E. "my treatments are very gentle. . . have never hurt anybody. . ." "We have had no claims, there are very few incidents involving Complementary Medicine. . ." "I can't see that sort of thing happening. . ." "I don't do many treatments. . ." etc. etc. I take a deep breath and usually plead for a more common sense and a more professional approach to these matters. It is not only the livelihood of the practitioner which is at stake, it is also the future of the patient/client and the reputation and financial stability of the professional organisation, not to mention the effects on the complementary therapy movement if things go wrong and the matter becomes public. We cannot forecast that we will never be complained about. None of us can say we are infallible, that we will never overlook something or fail to diagnose a condition or that we don't get tired, rushed or overworked, and make less than perfect judgements or actions.

These and many other questions need answering. Your financial security may even depend on it in the future!

Cartoons copyright of Paul Davies © 1997.

Demystifying the Jargon

LEGAL LIABILITY:

As a practitioner, you have a legal duty of care towards those who come to you for assistance. If this is alleged to have been breached, you can be sued for compensation. There are other ways in which you can be held legally liable/accountable, such as for causing injury or damage to people's property.

MEDICAL MALPRACTICE:

This is where a practitioner has not performed with a reasonable degree of skill and care, resulting in possible injury, death or loss to the patient.

PROFESSIONAL INDEMNITY:

This is a commonly misunderstood term, and refers to a cover which indemnifies (i.e. protects) the practitioner against any allegations of loss arising from the conduct of his/her occupation, whether treating or not. This usually refers to financial loss due to inadequate or incorrect advice, consultancy work etc., and applies where injury has not been caused.

PUBLIC LIABILITY:

This covers liability at law for causing injury to other people (not necessarily clients/patients) for damage to their property, provided that no treatment or advice was the reason for the incident.

PRODUCTS LIABILITY:

This covers you for any defect in goods (e.g. Medicines, supplements or health aids) sold, supplied or demonstrated to your patients/clients which may cause injury or damage. Even if you did not manufacture the item concerned and innocently passed it on, under EEC directive & Consumer Protection Act etc., you will still be initially held liable. Your insurers may be able to subsequently claim any losses from the negligent manufacturer. If you make up remedies or cosmetics etc., and sell these to the general public rather than just your own clientele, you will need to get a separate cover.

EMPLOYER'S LIABILITY:

This covers you for injuries sustained by any employees or work experience assistants that you may have, and is legally required. The certificate needs to be displayed.

INDEMNITY LIMIT:

The maximum amount payable under a policy for any damages awarded against you in Court, or as an out of court settlement figure.

AGGREGATE:

The maximum total of claims in any one policy year.

RETROACTIVE DATE:

The date from when cover starts originally. Most would give a date at the start of cover, but can be backdated to allow for picking up the risk from any previous policy periods, if insured on a claims made basis elsewhere.

LEGAL & DEFENCE COSTS:

The amount to pay for the legal advice and support throughout the process. This can be a large amount and some policies include this within the Indemnity Limit, thus reducing the amount of total cover.

EXCESS:

the amount you are liable for in the event of a claim. Some insurers may not invoke the excess and guidance and support may be given to help deal with a situation, without recourse to solicitors.

CLAIMS OCCURRING:

a type of policy (usually Public or Civil Liability wording) where a claim is agreed to be triggered by the date the incident was alleged to have taken place. There is no need to keep a policy going after retirement or when changing to another policy. There is not usually a facility to backdate cover, if for example a renewal date is missed, and you are locked into that type of wording, so that any claim will be based on the cover and amount which was in force at the time of the incident which is alleged to have occurred, however long ago that may be. One has to be able to indicate when an incident took place for cover to operate, which may be difficult after a number of years.

CLAIMS MADE:

Most professionals have this type of policy. It covers you when a claim is made known to you, not when it is said to have occurred. When retiring or ceasing the policy, you need to ensure that any new carrier will pick up the previous period insured, or that you purchase at a reduced premium some "Run Off " cover. Cover can be backdated, if for example you accidentally missed your renewal date, and cover can be updated and improved each renewal. Any claim made after the update will be dealt with under the wider cover, even though it may have taken place in a previous year. The statute of limitation (normally 5 years – more if patient was a minor at the time of treatment) means that you do not have to purchase run-off cover indefinitely!

RUN-OFF:

A policy which protects after practice or cover has ceased in case there are any late breaking claims arising from
previous work.

BREACH OF CONFIDENTIALITY:

Where someone (not necessarily a patient) alleges you have divulged information about them which could be detrimental in some way or cause loss.

LIBEL & SLANDER:

allegations that you have maligned someone verbally or in writing.

SURGERY CONTENTS PACKAGES:

Protect your equipment and belongings from fire, theft, storm, malicious damage, money losses etc.

PERMANENT HEALTH:

A type of policy which protects your income in event of illness or accident, rendering you either totally or partially disabled from earning a living. It is usually non-cancellable and covers you until retirement age. Some policies have an investment feature, others are pure protection.

The above is a simplified guide, which I hope some of you will find useful. There are many issues that can and do face the Health Professional in Private Practice – some of these constitute just the nuts and bolts of running your own business, others are the normal (!!) stresses and strains (as well as the exciting challenges) of running your own practice. Whilst very rewarding and fulfilling, it can be lonely and frustrating at times, and the benefits of receiving ongoing professional support and advice are vital in these complex times of accelerated change.