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Issues posed by section 46 of the National Health Act 2003

07 January 2013

In March 2012 a number of provisions established in the National Health Act 2003 came into effect. Amongst them was section 46 which 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.'

Dental Protection Ltd/Medical Protection Society believes that the wording of this legislation is subject to a number of different interpretations. We also understand that it is not possible to purchase insurance for the injured party rather than the healthcare professional.

We are in the process of seeking clarification on the intended meaning of section 46 in order to assess what impact this could have on members and to be able to provide advice on what steps, if any, members may need to take.

We do not believe that members need to make any immediate changes to their indemnity arrangements.

Seeking clarity

This is not a new issue. When we became aware of the proposed section 46 legislation nine years ago, we were assured that the proposals would not impact on existing indemnity arrangements for clinical negligence.

Revisiting the legislation now that it is in effect, we believe that it could be interpreted more broadly than we were initially advised. We are seeking clarification on whether:

  • Section 46 only applies to private health establishments or if it could be applied to individual healthcare professionals
  • It is designed solely to cover public liability issues (such as slips and trips) or if it extends to clinical negligence
  • Whether the reference to 'insurance' includes DPL/ MPS indemnity, given the wording of the legislation refers to 'indemnify'

Action we are taking

We are actively taking steps to clarify the wording as quickly as possible. We are exploring, through a number of routes, what impact section 46 might have on members and what steps, if any, DPL/MPS and the members may need to take.

As the wording of the legislation is unclear and open to interpretation, we have written to the Health Minister Dr Aaron Motsoaledi and a number of policy makers seeking clarification.

What do DPL members need to do?

Nothing at the moment. We will keep members informed of developments through the DPL website and Riskwise.

If you have any individual or specific queries please contact [email protected]. Members should continue to ask DPL for assistance with any problem that arises from their professional practice.

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