Professional indemnity should be understood as a moral obligation – and a deeply personal one, write Dr Yash Naidoo, dento-legal consultant at Dental Protection, and Dr Volker Hitzeroth, medico-legal consultant at Medical Protection.
They write:
One of the quiet privileges of working within a global organisation like Medical Protection Society (MPS) is the exposure it gives you to how healthcare systems operate beyond your own borders.
On a daily basis, both authors of this article work closely together supporting members on South African cases. Although we come from different clinical backgrounds, our focus, our case files, and our responsibilities are firmly rooted in the realities of South African clinical practice, regulation and law.
At the same time, we are in regular conversation with colleagues in other jurisdictions where MPS operates, including Australia and the United Kingdom. These interactions are not abstract or academic. They are practical, case-based discussions that give us valuable insight into how similar clinical problems, complaints and adverse outcomes are approached in different professional and legal environments.
What has increasingly struck us is this: despite South Africa being broadly comparable to countries like Australia and the UK in terms of clinical standards, professional expectations and regulatory oversight, there is one notable difference. In those jurisdictions, professional indemnity is a legal requirement for healthcare professionals. In South Africa, it is not.
That contrast gave rise to a simple but important question – one that many clinicians may have asked themselves at some point: if professional indemnity is not legally required, why bother?
Best interests of the patient – and yourself
If you read widely on this topic, you will see that the issue is often skirted rather than confronted directly. The reality is that it is not unlawful to practise without professional indemnity in South Africa.
While inferences are sometimes drawn from professional guidance – including that of the Health Professions Council of South Africa – to suggest that indemnity is in a patient’s best interests, this does not translate into a formal legal obligation under South African law.
However, the absence of a legal requirement does not mean the issue is ethically neutral. Professional indemnity should be understood as a moral obligation, and a deeply personal one.
The nature of healthcare is such that adverse outcomes are inevitable. We strive to mitigate risk, practise carefully, and learn continuously; yet uncertainty, complexity and human limitation remain intrinsic to clinical work. Importantly, not all adverse outcomes arise from negligence and the existence of an adverse outcome does not automatically imply substandard care.
That said, some adverse outcomes are attributable to substandard care. Healthcare is an inherently human profession. We are clinicians. We are human. We err. At times, we make the wrong call, miss something, or fall short of the standard our patients are entitled to expect.
When that happens, the patient should not be left to shoulder the consequences alone.
A system in which a patient acting in good faith is reasonably compensated for harm – not as punishment to the clinician, but as a means of restoring them as far as possible to the position they would have been in but for that harm – is one that serves both patients and professionals.
Equally, there is reassurance for the clinician in knowing that their patient is not left financially or practically disadvantaged because of that error.
Even in the absence of a formal claim, clinicians often require guidance and support, whether in responding to complaints, navigating regulatory processes, or resolving matters early and pragmatically through reimbursement where appropriate. Professional indemnity plays a crucial role in enabling this kind of early, proportionate, and ethical resolution.
And there is something else worth acknowledging: the protection of your own livelihood and peace of mind.
A single adverse outcome, even one arising from an honest mistake, can carry financial consequences far beyond what most practitioners could absorb personally. Professional indemnity is not merely about doing right by the patient, though that remains paramount – it is also about ensuring that a momentary lapse does not unravel a career, a mortgage bond, or a family’s security.
Not legally mandatory, but often practically unavoidable
While professional indemnity is not mandated by South African law, it would be misleading to suggest that clinicians in private practice operate in a regulatory vacuum. In reality, large parts of the private healthcare ecosystem have, quite understandably, made indemnity a practical prerequisite for practice.
For example, hospital admitting privileges are commonly contingent on proof of adequate indemnity. Major private hospital groups routinely require clinicians to maintain professional indemnity as a condition of retaining their rights of admission.
Employment arrangements reflect the same reality. Locum agencies, private clinics and group practices invariably include professional indemnity as a non-negotiable condition of engagement. In other words, while the law may not compel indemnity, the structures within which modern private healthcare operates very often do.
When the risk lies in the relationship, not the treatment
In our experience, most of the complaints and claims that cross our desk have their genesis in dissatisfaction relating to the doctor/patient relationship.
Something in this interaction can trigger a patient’s initial dissatisfaction and sets the scene for a later complaint and medico-legal escalation. These predisposing factors may be as simple as the doctor running late, the patient not feeling heard, or the doctor coming across as abrupt and disinterested.
While a patient may choose to ignore this initial slight, their dissatisfaction is unlikely to trickle away completely and will most likely simmer below the surface for some time.
If thereafter, something happens during the treatment which causes further problems for the patient, they are more likely to escalate the matter into a formal medico-legal incident. The reality is that in the doctor/patient relationship, the doctor’s bedside behaviour and their manner and attitude, often determine the tone and trust of the clinical interaction.
If this non-clinical aspect is mismanaged, a later medico-legal escalation is more likely.
Other common non-clinical issues that can increase risks of escalation are:
1. Unreasonable patient expectations that are not recognised or are mismanaged by the practitioner. This is a common problem and can be easily addressed by attentive and active listening, careful reflections, and steering the patient back to more realistic beliefs with a calm and rational explanation.
2. Unintended boundary violations where the practitioner becomes blasé and forgets the very intimate nature of many medical consultations. Such matters often manifest in unnecessarily intrusive questioning, salacious commenting, a disrespectful physical examination or an insensitivity to the patient’s underlying discomfort.
3. Acrimonious patient relationships such as a patient undergoing a divorce, associated care and contact assessments, medico-legal expert assessments and reports as well as the involvement of children in parental separations.
This is where indemnity becomes an essential consideration for medical practitioners. Indemnity providers, like MPS, can offer clinicians advice and support on interactions with patients long before any issues arise to help manage these risks.
Why this matters across disciplines
While procedural specialties may instinctively associate indemnity with surgical or technical error, much of the work arising in modern healthcare relates to communication, expectations, documentation and professional boundaries. These issues cut across medicine, dentistry, psychiatry, psychology and allied health professions alike.
Professional indemnity is therefore not simply about defending claims. It is about ensuring that clinicians have access to experienced advice at moments of uncertainty, restraint in moments of pressure, and perspective when emotions run high. It supports clinicians in responding proportionately, ethically and defensibly – often preventing escalation rather than reacting to it.
A professional, not merely legal, obligation
Professional indemnity should not be understood as a pessimistic expectation of failure, nor as an admission of inadequacy. Rather, it reflects an honest recognition of the realities of modern healthcare practice and a commitment to accountability, fairness, and patient trust.
Think of the practitioner reading this at the end of a long week, weighing whether to renew their protection. Perhaps they have never faced a complaint. Perhaps they believe their work is beyond reproach, their relationships with patients solid, their documentation sound.
They may well be right. We often assist clinicians who tell us they have been practising for decades without a single issue – and this is their first. Healthcare is practised at the edge of human vulnerability and uncertainty, a space where doing everything right does not guarantee that nothing will go wrong.
Even where indemnity is not legally compulsory, its role in protecting patients, supporting clinicians, and upholding the integrity of the profession remains fundamental. In that sense, the question is not simply whether indemnity is required by law, but whether it aligns with the values we claim as healthcare practitioners.
In our view, it does.
See more from MedicalBrief archives:
What are a doctor’s obligations when the patient says ‘no’?
How much risk are YOU willing to bear?
How to navigate medico-legal matters in healthcare practice