Chloe, thanks for your enquiry, and apologies for the delay in replying.

Under the terms of the RCN contractual indemnity with its members, those members working on a self-employed basis are covered by the Indemnity Scheme, subject to certain exclusions. As you indicate, one of those exclusions applies to RCN self-employed members who ‘employ or otherwise engage’ in their business clinical staff who are not also RCN members.

The rationale for this exclusion is as follows:

1. In the case of staff who are employed by the RCN member in her business, the member’s business has vicarious liability for the actions of those staff, and in the vast majority of cases, it will be the member/her business who/which will be sued for the negligence of the staff concerned.

2. It is clearly not appropriate for the RCN to have responsibility for the actions of individuals who are not in membership of the RCN. The Scheme, after all, provides a personal benefit for each member, as part of the RCN subscription.

3. As regards staff who are not employees of the member’s business, but merely engaged to work in her business, although there is no vicarious liability, it is usually the case that the client/patient will sue the member/her business, at least initially, for any (alleged) negligence. Clients are not generally concerned with the employment status of the individuals working in the business. They contract with the business, and if something goes wrong, they look to the business to compensate them, irrespective of who actually delivered the care/service. Although a clinician who is self-employed (i.e. an independent contractor), working in/for the member’s business, will often has his/her own indemnity or insurance arrangements, there is inevitably some cost incurred by the member/her legal representative (RCN) in ensuring that the claim is directed against the independent contractor.

4. For the above reasons, the Scheme has always excluded from cover any self-employed member who ‘employs or engages in his/her business’ another health care practitioner not also in membership of the RCN.

5. The most simple solution to the above problem is for the member to arrange for ‘corporate’ cover for her business, which would extend protection to the member/her business against any claims, whether vicarious or direct or involving independent contractors.

6. The other solution is for the member to ensure that the client of her business contracts direct with the health care practitioner (not in RCN membership) who needs to be involved in some aspect of the provision of a service to the member’s client. I appreciate that this may be a hassle for the member, but it is the only alternative to arranging ‘corporate’ cover.

As regards OH professionals, I understand the need to refer on to an OH physician, in certain circumstances, and the mere fact that the RCN member does this, and subsequently takes the advice of that OH physician, isn’t a problem so long as the OH physician is not in effect working in the member’s business. So if the OH physician contacts/is paid separately by the client/employer, then there is no problem. The RCN Indemnity Scheme remains applicable to that member.

The critical issue therefore, to reiterate, is whether the non-RCN health care practitioner is working ‘in the member’s business’ (whether as employee or self-employed contractor), or merely working alongside the member but outside of her business. In the latter case, the member remains covered by the RCN Scheme.

Apologies for the length of this email. I hope that I have been clear, but if you have any comments/queries arising from the above, then please do not hesitate to contact me.

Best wishes,

Mr Chris Cox

Director of Legal Services

Royal College of Nursing

20 Cavendish Square

London

W1G 0RN

T: 020 7647 3545

E: [log in to unmask]

From: Chloe Nightingale [mailto:[log in to unmask]]
Sent: 24 June 2011 09:56
To: Cox Chris
Subject: Indemnity insurance

On 26 June 2011 16:42, [log in to unmask] <[log in to unmask]> wrote:

I think there is a lot of inconsistency in advice given by the RCN on this point. They don’t understand how OHNs practice. Chris Cox is the person to check with.

Anne

On 22/06/2011 20:30, "sharon naylor" <[log in to unmask]" target="_blank">[log in to unmask]> wrote:

when I was freelance I was categorically told that the RCN would not cover me - hence MDU membership which at that time was cheaper if you joined AOHNP at the same time

Date: Wed, 22 Jun 2011 15:27:40 -0400
From: [log in to unmask]" target="_blank">[log in to unmask]
Subject: Re: [OCC-HEALTH] Indemnity insurance
To: [log in to unmask]" target="_blank">[log in to unmask]

Dear All
I was told by the RCN in 2006 I was not covered if my company made the contractual agreement-see below (Item 1) and I feel its too late when you actually need the cover so to avoid any ambiguity I joined the MDU-its objective is clear and I am absolutely certain I am covered. I need that level of confidence.
At the very least I suggest Occupational Health Professionals do a price/benefit comparison between the Trade Union that is RCN and MDU.
See the current MDU advert below (Item 2) it is unambiguous and absolutely clear
I did maintain my RCN membership for a couple of years but found membership of limited value to me and my practice and professional development.
Kind Regards
Lynda Bruce
Aberdeen
Item 1)

Dear Ms Bruce,

Thanks for your enquiry. I hope that the following points will assist you:

cover under the RCN indemnity insurance scheme is personal to the member. In other words it protects you against clinical negligence or public liability claims arising from the delivery of a professional nursing service acceptable to the RCN.
It does not extend protection to a limited company. If you contract with a client in the name of your company, then of course it is only your company that is liable to the patient/client. Accordingly, the scheme will have limited application in those circumstances, unless your company then sues you for an indemnity.
although the scheme protects members who are both employees and self-employed, the latter are excluded where they 'employ' other health care workers. You mention taking on associates, but in the event that the associate delivers a service in the name of your company, the liklihood is that the company remains liable, even if it subsequently seeks to pass the liability on to the associate. In those circumstances, the RCN's insurers take the view that the member's business is 'employing' another health care worker, and therefore excluded from the scheme.
I should add that whilst we are unfortunately unable to cover your company under the scheme, you remain covered in relation to any personal liability (e.g. good Samaritan acts etc). Further there are other benefits of RCN membership, over and above indemnity insurance.

Best wishes,

Chris Cox

Item 2)

The MDU is a mutual, not for profit, organisation owned by our members. Established in 1885, we were the world's first medical defence organisation and have led the way ever since.
We defend the professional reputations of our members when their clinical performance is called into question.
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--
Chloe Nightingale RN BSc(Hons)SPCHN
Specialist adviser, occupational health
OH Assistance
www.ohassistance.co.uk

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