Practice nurses – the right indemnity for you

As nurses take on additional roles in practices, it is vital that you understand your requirements with regards to professional indemnity. Diane Baylis, Clinical Risk and Education Manager at Medical Protection, looks at the different options.

Read this article to:

• Understand your requirements with regards to professional indemnity
• Find out more about vicarious liability, RCN membership, professional standards, and how Medical Protection can help you
• Learn from a case study

Professional indemnity

The subject of professional indemnity can be confusing, but all nurses have a legal and professional responsibility to ensure that they have adequate indemnity which is appropriate to their scope of practice.

In July 2014, the UK government introduced a requirement for all healthcare professionals to hold an appropriate indemnity arrangement. Similarly, in April 2016, the Nursing and Midwifery Council (NMC) introduced the requirement for nurses to state that they hold an indemnity arrangement as part of the revalidation process.

Appropriate cover is defined as:

‘An indemnity arrangement which is appropriate to your role and scope of practice and its risks. The cover must be intended to be sufficient to meet an award of damages if a successful claim is made against you.’¹

Vicarious liability

Both public sector employers and independent sector employers (including general practice) have ‘vicarious liability’ for the actions of their employed staff. This means that employers have a legal responsibility for tasks carried out or actions taken by their employees, connected with their employment.

To cover the risk of a claim, employers must arrange appropriate indemnity or insurance cover for their organisation and staff.

• NHS England provides indemnity to healthcare professionals who work in hospitals under the Clinical Negligence Scheme for Trusts (CNST), which is administered by the NHS Resolution.
• In Wales, cover is provided by the Welsh Risks Pool.
• In Scotland, NHS workers will be covered by the Clinical Negligence and Other Risks Scheme (CNORIS) and there is an equivalent scheme in Northern Ireland.

Most general practices obtain indemnity through membership with a medical defence organisation such as Medical Protection. However, for those based in England, this will change in the future as the government is in the process of developing a new state-backed scheme for clinical negligence indemnity. The Department of Health and Social Care has directed NHS Resolution to establish and administer the scheme. Details on how the scheme will operate are yet to be confirmed.

Royal College of Nursing (RCN)

Many nurses hold membership with the Royal College of Nursing (RCN) and may assume that the RCN covers their indemnity. This is no longer the case if the nurse is employed by an organisation. In January 2012, RCN withdrew cover for members employed by general practices and now the RCN does not provide indemnity to all nurses who have a contract of employment, whether working in the NHS, independent sector or non-NHS public sector.

Therefore, the RCN scheme does not apply as the employing organisation is vicariously liable for the actions of its employees. However, the RCN scheme will generally cover members for ‘Good Samaritan acts’ and those who work in a genuine voluntary capacity providing you are undertaking a health and social care activity considered acceptable to the RCN scheme. It is always best to contact them to ensure that you are not subject to any exclusion terms.

Medical Defence Organisations

Some practice nurses have complimentary professional indemnity provided by Medical Protection through their employer; a complimentary membership provides access to indemnity only (for example, litigation) and does not extend to non-indemnity protection such as NMC hearings. They should discuss the benefits and limitations of their membership with their practice manager and Medical Protection.

We also recommend our nurse members have membership with the RCN or an appropriate union to access the following:

• workplace support such as investigations and disciplinary hearings
• learning resources including access to databases, e-journals and e-books
• access to professional forums
• member discounts for conferences and events.

Agency nurses

Nurses working as locums through an agency should verify whether they are protected by professional indemnity or insurance through their agency or the practice where they will be providing locum cover, or if they need to arrange their own professional indemnity arrangements.

Professional Standards

Meeting the following requirements will reduce the risk of nurses facing criticism regarding their professional practice:

• Having undertaken appropriate training to ensure that they can demonstrate competence in their area of practice with regard to the knowledge, skills and experience to deliver the appropriate standard of care.
• Working according to legal, professional and regulatory standards, for example the NMC Code².

The NMC Code states that nurses must: “work within the limits of your competence”.

Case study

Sarah is a nurse practitioner and a prescriber working in a medical centre. She sees patients with acute medical conditions.

She saw a 35-year-old lady who complained of discharge from her left nipple. She was diagnosed with mastitis and Sarah advised that she would review the patient’s condition one week later. The patient returned to see Sarah the following week, and it was noted that the discharge seemed to have improved.

Eight months later, the patient returned to see Sarah again complaining of discharge from the nipple. Sarah examined the breast and found no lump and concluded that the condition was due to an infection. She took a swab and commenced the patient on a course of antibiotics.

Three weeks later the patient returned to see Sarah again as the discharge had continued. Sarah was unable to locate any results from the swab that she had taken previously and made a note to chase it up. The patient was given a further course of antibiotics.

Six months later, the patient attended the surgery and was seen by the GP. She was complaining of breast pain and discharge. The GP made an urgent referral to the breast clinic. Sadly the patient was diagnosed with invasive breast cancer resulting in a radical left mastectomy, radiotherapy and chemotherapy. Her prognosis was thought to be poor.

The practice was informed that the patient had passed away; naturally both Sarah and the GP involved were devastated. On a busy Monday morning three years later, the practice manager informed Sarah that they had received a solicitor’s letter regarding this patient. The patient’s family had decided to pursue a clinical negligence claim against Sarah stating that the delay in diagnosis and treatment of the breast cancer contributed to the patient’s death.

Sarah was devastated by this news and feared for her job.

The outcome of Sarah’s clinical negligence case

Luckily, Sarah had the appropriate membership with Medical Protection which provided the support she needed for the scope of her practice.

She immediately contacted Medical Protection for medicolegal advice. As she found the claim process upsetting and stressful, Medical Protection was also able to provide her with a counselling service throughout the process.

Both Sarah and the GP were provided legal support from Medical Protection and the case was settled for a substantial amount.

References

1. NMC, Professional indemnity arrangement: A New requirement for registration https://www.nmc.org.uk/globalassets/sitedocuments/registration/pii/pii-final-guidance.pdf

2. NMC, The Code https://www.nmc.org.uk/standards/code/read-the-code-online/#fourth

More support

Contact Medical Protection to understand whether you are suitably indemnified. The following sites provide more information about the benefits of Medical Protection membership:

• Nurse indemnity FAQs: https://www.medicalprotection.org/uk/for-members/practice-xtra/professional-protection/nurse-indemnity-faqs
• Associate Membership https://www.medicalprotection.org/uk/join-mps/associates