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OCC-HEALTH  June 2011

OCC-HEALTH June 2011

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Subject:

Re: Indemnity insurance

From:

Jeremy RF Smith <[log in to unmask]>

Reply-To:

Occupational Health mailing list <[log in to unmask]>

Date:

Wed, 22 Jun 2011 23:04:06 +0100

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (77 lines)

Dear All,

Taken from the RCN Leaflet on indemnity insurance:

RCN members are covered when undertaking a health 
and social care service acceptable to the RCN. Advice 
on what is acceptable may be obtained from the RCN. 
The following exclusions apply:
•  if your negligence causes only a financial loss, not 
associated with any personal injury or damage to 
property (this exclusion does not apply to nurse 
expert witnesses or occupational health nurses)
•  self employed midwives (not including pre-natal or 
post-natal care, or parent education)
•  self-employed members (whether working as sole 
proprietors, partners or behind a limited company) 
who employ or otherwise engage in their business 
other health care workers who are not RCN members 
(e.g. a doctor working with you who prescribes for 
your client)
•  members working or resident in the USA or Canada 
or where legal proceedings arise in either country.
In all of these situations the member needs to organise 
alternative cover for their practice or business.
When is my employer responsible for my 
negligence?
As a nurse or health care assistant you are legally 
accountable for your actions, and may be sued if you 
are negligent and cause someone harm. Employers 
however, are legally responsible for the actions you 
carry out in the course of your work. This is known 
as vicarious liability, and your employer will have 
insurance or its own indemnity arrangements for this 
purpose. Vicarious liability is automatic wherever you 
work under a contract of employment. The employer is 
vicariously liable if the incident happened during the 
course of your employment.

Having looked into this recently it basically comes down to whether you work with others who are not RCN Members and also whether the organisation that you work for if self employed covers you with their liability insurance.  So if you are self employed and working in an organisation that doesn't cover you you won't be covered.

This is the statement that the RCN released regarding indemnity insurance, although it relates to Nurse partners in GP Practice the principle would be the same:

"Nurse Partners and RCN Indemnity Insurance

As a result of changes in the way that general practices are run, mainly through the new GMS contract, the RCN is receiving a number of enquiries from nurses regarding the RCN’s indemnity insurance scheme being appropriate for nurses entering partnership with GPs.

Any nurse who becomes a partner in a general practice immediately assumes legal accountability for the actions of both of the following :

Their fellow partners (via joint and several liability)
All of the staff (i.e. healthcare professionals, administrative staff or otherwise) who are employed in the practice (via vicarious liability).
Obviously this arrangement increases the risks of claims and to insure against those risks the nurse partner would need to take out insurance cover for the position they now hold within the ‘business' . 

The RCN's insurers have declined to extend the protection afforded an individual member under the policy, to cover her ‘business in these circumstances. This also means that the member is not covered personally when working in the ‘business’. This exclusion also applies to nurses who choose to be a fixed share salary partner or an employed salaried partner.

Although this decision seems harsh, there is logic and rationale behind it. If the nurse has to take out cover for her vicarious (or joint) liability (i.e. business cover), then that cover will inevitably extend protection to his/her own professional practice whilst working in the business.  In addition, if he/she was also personally covered by the RCN, and caused injury through his/her own clinical negligence, there may be a dispute between the RCN insurer and the business insurer about who would pick up the costs. Thus, business policies often exclude cover for the insured if there is another policy of insurance in existence for the same risk.

The RCN's insurers will continue to cover the nurse employer in relation to any practice she undertakes outside of the business/general practice (e.g. undertaking the odd bank shift at the local hospital to keep her hand in; the charitable act of the 'good Samaritan', etc). 

In reality, there will inevitably be insurance cover for the business in relation to clinical negligence claims, and the new nurse partner should ensure that that insurance policy covers her own practice in the business.  If not, they should identify an insurance broker that can provide them with personal liability insurance for their practice whilst working in the business.  This is usually approximately £400. This additional cover is a business expense (along with other insurance cover, such as for 'employer's liability', cars, equipment, premises etc), and can therefore be offset against the income of the practice for tax purposes, rather than having to be paid for by the individual nurse partner. 

We hope that this explains the situation and the reasoning behind the RCN current indemnity insurance system. We obviously hope that nurses believe that RCN membership has a number of benefits, of which, indemnity insurance protection is only part of the package, and that this will not inhibit their continuing membership of the RCN. For example, members who are nurse partners and employers of others would still be entitled to the usual range of general professional and employment relations advice and support, and legal representation in appropriate circumstances, before the NMC for example, should they need it."

So I would say it is doubtful whether the self employed OHA would be covered - too many loop holes for me.  There are companies out there who will provide cover.  Please contact me off list for further details as I have just set mine up.

Rgds,

Jeremy

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