Bank and Agency Staff: Guidance on Professional Indemnity (Medical Malpractice) Insurance

Published: 27 October 2017 Ezine

The Society's professional indemnity insurance cover, as with all malpractice insurance, is designed to protect the individual from malpractice claims from patients or third parties and cannot be used by an agency or company to replace their liability.

The following information is designed to clarify the position for bank and agency staff who may not have a written contract with an employer, or who have been advised they need to provide their own insurance. 

There has been discussion within the membership about professional indemnity insurance for bank and agency staff.

To clarify the situation for members concerned about the level of cover they require, we have made contact with the Health and Care Professions Council for a view on what constitutes sufficient cover to meet the requirements for registration. It is mandatory for all HCPC registered practitioners to hold sufficient professional indemnity insurance to cover any liability or claim.

Some members may be in receipt of false and misleading information about this issue that may compromise their ability to meet any liability and the requirements for registration. The following is designed to provide clarity.

Bank staff
Many members will already have a NHS or substantive contract with an employer which will ensure that they have cover that includes vicarious liability. There will also be a separate Bank Contract of Employment, which guarantees work, or is 'zero hours'. This will provide the same level of cover as the substantive contract.

However, if you are unsure of liability or level of cover, you should check with your employer.  If there is no contract of employment and the arrangement is not formalised on paper, the member is at risk of not having sufficient cover in the event of a claim, or to satisfy the requirements for registration.

In summary, it is important that members who are engaged ‘on the Bank’ are clear who carries their line management responsibility, the existence of a contract of service, and the extent to which the employer will be responsible for a complaint or claim.

Agency staff
Where agency staff do not have a contractual arrangement with an employer or health care provider, they will need to consider how they will address a claim in the event that the healthcare provider offering the locum duties denies liability.

If there is no contractual obligation for the provider or agency to be responsible for the work performed by a member, there may be an assumption that the member will hold sufficient insurance in their own right.

Another assumption might be that the agency responsible for supplying the staff will have cover in place. These assumptions are risky and it is important to note that the SoR insurance provision will not apply. This is the same for all PII insurance schemes.

It may also be assumed that the NHS Resolution Clinical Negligence Scheme for Trusts (CNST) will cover the work done on NHS premises by agency staff. Once again, members should be cautious about assumptions and the HCPC have highlighted this one as a concern as quoted below:

Where a registrant is employed, the employer is vicariously liable for the employee’s acts and omissions. Consequently, the indemnity arrangement is provided by means of the contract of employment and the employer’s underlying cover - from the Clinical Negligence Scheme for Trusts (CNST), an insurer or own funds, is largely irrelevant.

A contractor is not in the same position and so requires either indemnity cover of their own, or confirmation that the person with whom they are contracting will be covering them. It cannot be assumed that NHS Trusts will simply assume these liabilities. whether via the CNST or otherwise.

To summarise: for locum staff, employment through an agency cannot be guaranteed to provide sufficient insurance cover to meet the requirements of registration. and therefore a member engaged by an agency may register with the HCPC in error and may be subject to investigation.  

Those members who do not have written confirmation of indemnity from the organisation they work for, and therefore cannot access the Society’s PII, need to obtain personal insurance from elsewhere. 

The Society has an arrangement for quotations from Corvelia underwriters via Insync Insurance Solutions (brokers) who have agreed to provide quotations for Society members. Click to access the application form.