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SoR Professional Indemnity Insurance revision

29 September, 2017

Author: Gareth Thomas, SCoR President

Protection

After in-depth negotiations with the Society's professional indemnity insurance underwriters (the underwriter accepts the risk and manages claims), we can confirm that the SoR Professional Indemnity Insurance scheme will be renewed on 1 October 2017.

The scheme has changed. Extensions to include members who work outside a conventional employment contract, such as independent and private contractors, have been withdrawn by the underwriter.

Members who are employed under a contract of service are not affected and continue to have cover. This includes all NHS directly employed staff and practitioners who work for health providers such as Alliance Medical, Nuffield Health Care, BMI, CHC, etc.

Members following their contract of service and other material issued by the employer and the College of Radiographers, and who meet the requirements of our insurance scheme, can have a reasonable expectation that the underwriters will accept a claim. However, as with all insurance schemes, the final decision rests with the underwriter.

Agency and bank staff
The employment of agency and bank staff is more complicated.

They may be covered by an employer if they are working under the direction of managers in a department, NHS trust, or hospital where they are based.

This will mean that the employer will be primarily responsible for any complaint or claim.

Where the employer denies liability, the member may have access to the SoR scheme but this will depend on the working arrangement and cannot be guaranteed. The decision of whether the cover applies is at the discretion of the underwriter.

Any member that works as a contractor (as opposed to an employee) for a health care provider, from 1 October does not have access to the SoR scheme and will have to purchase their own insurance.

To assist members with obtaining cover, the SoR has concluded an arrangement with a preferred provider. There are more details and a link to their website.

The changes to the Society's Professional Indemnity Insurance have been driven by the insurance underwriters, who are responding to a steady increase in claims from independent and self-employed practitioners.

The SoR scheme was not designed to protect this section of the market. When the numbers of members who were independent or self-employed were relatively small, there was little evidence of the level of risk and we were able to extend the policy to include this section of the Society's membership, albeit under certain conditions.

Unfortunately, as the market has grown and with some health providers appearing to believe that they could get insurance on the cheap, or limit their liability, the underwriters made it clear that they wanted to reassess the situation.

Naturally, the SoR considered whether the risk could be managed within the terms of our existing cover. However, we found that this would require a considerable leap in the membership fee for all members. UK Council agreed that this was not an acceptable outcome. We did consider a tiered contribution scheme, but the underwriters took the view that as the numbers who currently work independently are relatively small, this was not practicable.

The SoR scheme, which operates in the same way as all union schemes of this type, will only apply to members who are working under a contract of employment that includes vicarious liability.

This means that if you are an employee it is the employer who is responsible for your work. Any claim will, therefore, be against the employer in the first instance. If there is a separate claim against the member, or the member is joined in the action, then the SoR provision applies.

The NHS employment contract has this provision, meaning that most SoR members have no cause for concern: the SoR scheme will apply to them.

It is important that if you are not working for the NHS under an NHS contract, you understand your employment relationship. If you are unsure you will need to clarify with the health provider if the contract you have:

  1. is a contract of service (the work you do is under the control of the employer) and vicarious liability will apply,
  2. or that you are engaged under a contract for service (you are engaged but not employed by the agency, trust GP surgery or company) and vicarious liability will not apply. (Vicarious liability is defined as employment where the employer is held responsible for the actions or omissions of the employee during the course of their employment.)

You will also need to look closely at an employment contract you have if you work as a sub-contractor, or other form of work with a GP practice. We are aware that some contracts will specifically exclude any responsibility for medical malpractice and expect the member to purchase insurance cover separately.

It is sensible for any member working outside the NHS, or one of the large independent healthcare providers, to check the terms of their employment contract in order to be sure that vicarious liability applies.

We know that the changes to indemnity cover have caused concern and raised many questions among some members. Managing the changes to protect our members’ interests has been complex and lengthy.

I hope this article has helped to explain how and why the process has been conducted.

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