The most expensive mistake a private practitioner can make is assuming their defence union subscription still has them fully covered the day they take their first private patient.
For most consultants and GPs the move into private practice — whether full-time, alongside an NHS post, or as a portfolio retirement step — is also a quiet shift in how indemnity actually works. NHS care is indemnified by the Crown through the relevant national scheme. Private work is not. It must be covered separately, and the practitioner has a choice between continuing on a defence union’s discretionary indemnity and buying a commercial professional indemnity or medical malpractice policy. The two products look similar on the brochure. They behave very differently when a claim arrives. This guide explains the choice, the gap risk when moving between them, and where the General Medical Council and Care Quality Commission regimes sit on top.
A consultant who runs a private clinic one afternoon a week is carrying the same legal exposure as one with a full private practice. The patient relationship, the duty of care and the negligence test are identical. The only difference is the indemnity backing it.
The defence unions — Medical Defence Union, Medical Protection Society and Medical and Dental Defence Union of Scotland — offer discretionary indemnity. Membership grants a right to request assistance with a claim; it does not give a contractual right to indemnity. The board may decide not to fund a claim. In practice they do fund the overwhelming majority of bona fide claims, and discretionary indemnity has historic advantages: it is occurrence-based (it responds to the date of the incident, not the date of the claim), it covers run-off automatically through continued membership, and it has historically been competitively priced for clinical risk.
Commercial professional indemnity and medical malpractice cover is contractual. The policy must respond on its terms. It is usually written on a claims-made basis — the policy in force at the time the claim is first made or notified is the one that responds. That changes the run-off question fundamentally, because cover for incidents during the policy period must be maintained through subsequent renewals or specifically purchased as run-off when the practice ends.
The two systems can coexist on the same risk. Many consultants keep defence union membership for NHS and “good Samaritan” exposures and buy a commercial policy for private work, particularly where their private practice involves higher-risk specialties or where their hospital requires a specific limit and proof of contractual cover. Where a hospital or insurer requires evidence of cover at a specific limit, occurrence-based discretionary indemnity certificates can be harder to accept than a commercial schedule.
The General Medical Council’s Good Medical Practice requires every doctor to have adequate and appropriate indemnity or insurance in place for the full scope of their practice. Where a doctor holds Specialist or GP Register entry — or operates under the Practitioner With Recognised Specialist Status framework where applicable — the scope of practice they declare to the GMC and the scope of practice insured should match.
A commercial medical malpractice and professional indemnity policy for a private practitioner usually combines clinical indemnity (treatment-related injury), professional indemnity (advice, consent, reports), Good Samaritan acts, libel and slander cover (relevant for medico-legal report writers), and a defendable disciplinary or regulatory representation extension covering legal costs at a GMC fitness to practise hearing.
It will respond on a claims-made basis. The trigger is the first formal intimation of a claim or circumstance during the period of insurance. Notification discipline is therefore central. A patient complaint, a Datix incident, a request for records by a solicitor or a coroner’s inquiry can all be circumstances that the practitioner must notify under the policy condition. Failing to notify within the period — and then trying to notify at the next renewal — is the single biggest avoidable coverage failure we see.
Discretionary indemnity does not have the same notification rigidity. Members are expected to inform the union promptly but, because there is no policy period, the question of which year’s “cover” responds does not arise. The asymmetry between the two regimes is exactly why the moment of transfer is the highest-risk point in a practitioner’s career.
Practitioners providing CQC-regulated activity at their own premises must be registered with the CQC, with a named registered manager, and underwriters will ask for confirmation. Practitioners operating only at registered private hospitals usually rely on the hospital’s CQC registration but must confirm their practising privileges and any clinical governance reporting obligations.
The Medical Act 1983 governs registration and fitness to practise. It is the statute under which the GMC operates. The relevant point for insurance is that an indemnity gap can itself be a fitness-to-practise issue: practising without adequate cover is a regulatory matter, not just a commercial one.
Consider a typical NHS consultant cardiologist who retires from full-time NHS work and continues private practice from a London hospital. He has been a defence union member for 30 years. On retirement, he is offered a private medical malpractice policy at a substantially lower premium than continuing union subscription. He switches.
Two years later a patient he saw privately in NHS practice 18 months before retirement issues a claim — alleging negligent failure to investigate symptoms that proved to be a missed diagnosis. The treating event predates the commercial policy. The commercial policy has a retroactive date of inception (the date he switched). It declines.
He turns to the defence union for assistance. Because he is no longer a member, and because he did not purchase Extended Reporting Period cover or maintain a paid-up membership for run-off, the union may decline to assist or assist only on restricted terms. The result is exposure to a six-figure defence cost and damages that should have been straightforward to insure.
The fix would have been to negotiate retroactive cover with the commercial insurer back to the date he started private practice — possible if the union confirmed no prior incidents — or to maintain union membership in a paid-up “run-off” form alongside the new policy until the limitation period had run.
Apex’s view: the discretionary-versus-commercial debate is rarely as binary as the marketing on either side suggests. We routinely see consultants well served by a defence union for the core specialty and a commercial PI/MM policy bolted on for medico-legal report writing, aesthetic work, or expert witness fees that the union does not cover. What matters is that someone — broker, defence union or the practitioner themselves — has actually mapped every income stream against every cover, in writing, and rechecked it after every change in practice. That mapping is the conversation we have at every renewal, and it is the conversation that catches the gap before it catches the practitioner.
Apex Insurance Brokers serves UK professional services firms and commercial businesses. Call 0117 325 0027, email hello@apexinsurancebrokers.co.uk, or request a quotation.
Get a quote