What are the limitations of discretionary indemnity?
Dental defence organisations providing only discretionary indemnity must consider each new request for assistance as the incident arises and cannot say they will assist with a clinical negligence claim in advance. If a discretionary DDO were to give any advance guarantee, or to suggest that they would always assist with claims in particular circumstances, this would amount to a contractual right to indemnity and could be held to be conducting insurance business. Conducting unregulated insurance business is a criminal offence. The problem with discretionary assistance for claims is that the decision to assist or not can only be made at the time the dentist presents the indemnifier with the facts of the case for which he is seeking help. If the organisation then declines to exercise discretion in favour of the dentist, he or she is at risk of financial ruin and patients may go uncompensated. The board of a discretionary defence organisation, in deciding whether to grant assistance, must
