The Medical Protection Society (MPS) has responded to the National Treasury’s consultation on a series of draft regulations it published in the Government Gazette on 30 November 2012 (No. 35939).
MPS has limited its response to draft regulation 8.2, which focuses on the issue of vicarious liability. Whilst both the existing and draft regulations are essentially the same, MPS’s submission has been prompted by what we understand is an interpretation of the regulation that is limiting the common law concept of vicarious liability.
Under common law, the employer would be held liable for at least some of the aspects listed under 8.2.1 (a) – (h) as not rendering the employer liable. This liability is excluded, based on, so we understand, an assumption that defence organisations such as MPS, and short-term insurers, will indemnify an employee held personally liable for acts or omissions arising from their employment. This is not the case. MPS indemnity does not extend to the liabilities for acts or omissions of public sector-employed health personnel.
There is a likelihood of interpretational difficulties, which stand to be resolved by the state attorney. This introduces significant uncertainty from a professional indemnity or insurance perspective. It also creates legal uncertainty for employees in the health sector, who may face fairly complex situations where training, support, equipment and a whole range of factors may impact on questions of liability. Within this, there would be limited certainty as to whether the employer, or the person in his/her own capacity, would be held liable.
In light of these concerns, MPS has proposed the following amendment to draft regulation 8.2: ‘The State remains vicariously liable for the acts and omissions of their employees.’
A full copy of MPS’s submission in response to the draft Treasury regulations can be found here.