The Medical Defence Union: “MDU”

Once again, McGarr solicitors have been criticised for a posting relating to Medical Defence Union (“MDUâ€?).

Again, the critic is the Dublin solicitor to MDU.

The criticism now carries far less force than the first criticism, consisting as it does of assertion and a refusal to engage with questions we raised in correspondence after the first attack.

The solicitor instead confirms he is writing to our ISP.

He has done this despite the fact that we took down the first posting, pending hearing from him. On that occasion he also wrote to our ISP.

Well, it is now clear we will not be hearing from him in an acceptable way. So, it’s time to re-examine MDU:

1. MDU is the precedent for The Solicitors’ Mutual Defence Fund Limited.

2. MDU is a mutual society offering membership each year to its practitioner members. As the name suggests, the Medical Defence Union has as its declared purpose the defence of its medical members in controversies (typically claims of professional negligence) touching the practice of their profession.

3. In a High Court action the judge found; “The MDU claims that under Article 48 (which is set out in its material parts, in the Defence) an indemnity may be granted in whole or in part with regard to actions affecting the professional character or interests or conduct in a professional capacity of a member raising a question of professional principle but only on such terms and conditions as the Board of Management should think proper, the Board of Management (or other authorised person or committee) to have an absolute discretion to limit or restrict the grant of such indemnity or altogether to decline to grant the same or to determine any indemnity granted without giving any reason.â€?

4. The MDU is on record as claiming that “discretionary indemnity is ,,,unacceptableâ€? [as opposed to, effectively, an insurance contract…].

With regard to our original posting, it was based on facts, and ended in a comment.

That comment was to the effect, that a doctor and his/her patient must have certainty, in the event of a claim of negligence, and given the very high legal costs in establishing the fault or otherwise of the doctor, it cannot be left in doubt that an indemnity will be forthcoming for the claim and the costs associated with it, [and questioning why the Department of Health, even yet, is treating membership of MDU (the “MDU Indemnityâ€?) as equivalent to a policy of insurance].

In short, mutual societies like the MDU and the Solicitor’s Mutual Defence Fund Limited are not offering “insuranceâ€? when they offer “indemnityâ€?. They can and do decline to furnish the indemnity.

Not only were the facts accurate, established, and in the public domain, and the comment fair [and on a matter of public interest], but, remarkably, the comment reflected the declared view of the MDU itself!

In these notable circumstances it is little wonder that the solicitor of MDU little relished answering any queries on the challenge to the original posting. He might have found himself referring to a painful occasion for the MDU in the High Court (See Link).
The real issue lies in the communication to our ISP that we had defamed MDU. That claim was used to try to persuade our ISP to to take down the posting, and possibly, the entire website.

That of course, raises issues in constitutional law. The Constitution declares the right to freely express opinions. In addition, the posting was privileged, being fair comment on a matter of public interest.

What of that context of the posting, the public interest? The MDU (as fully reported ) has been in disagreement with the Department of Health and Children on the cover to be given to its members for claims (in negligence) arising prior to the introduction by the Government of a new scheme to pay for those claims.

“Irishhealth.comâ€? reported:

“But the MDU says it can not guarantee to pay for claims, principally for obstetric cases, prior to the new scheme – despite the fact that consultants had policies taken out at the time.

The MDU wants a deal with the Government, and has offered to pay the Department of Health 60 million euro to offload the responsibility for these ‘historical claims’. The Health Minister argues that the real cost of claims could be 400 million euro or more; that the policies which were in force should cover the claims and that the MDU should meet its liabilities. The Department of Health and the MDU are to hold further talks to try and resolve the issue. If unresolved, this could go to court and possibly in a British court.â€?

Clearly, for the MDU the use of pressure, legitimate or otherwise, in pursuit of its perceived interests (how can it have interests separate to those of its members?) is OK.

Which brings us back again to the Department of Health and Children. Why does the Department continue to recognise the MDU indemnity as a policy of insurance?