Assessments carried out to determine whether it is appropriate for a patient with a mental disorder to be detained for care or treatment by a care home or hospital should only be done by a healthcare professional with insurance in order to help safeguard the rights of vulnerable patients says the MDU, the UK's leading medical defence organisation.

The assessments were introduced as part of the Mental Capacity Act 2005 Deprivation of Liberty Safeguards which are due to come into effect on 1 April 20091. However, the DoH now proposes to amend regulations2 defining the criteria for eligibility of healthcare professionals to carry out the assessments, so that assessors will no longer need to prove they are "insured in respect of any liabilities that may arise". Instead it is proposed that they will only have to show that they have an "adequate and appropriate indemnity arrangement which provides cover in respect of any liabilities that might arise." This may be a policy of insurance, an arrangement made for the purposes of indemnifying a person, or a combination of the two. While this change is proposed to include healthcare professionals who are covered by NHS indemnity, which is not insurance, this amendment would also have the unfortunate effect of allowing indemnity to be provided on a discretionary basis.

Dr Christine Tomkins, MDU Deputy Chief Executive explains: "This proposal would weaken the safeguards for vulnerable patients as if there is no contract of insurance, how can someone harmed by a negligent deprivation of liberty assessment be sure they will receive their rightful compensation? We believe that the current regulations already allow for NHS indemnity and there is no need to change them…