On 17 July 2014, it became a requirement for Nurses and Midwives to hold an indemnity arrangement in order to be registered with the Nursing & Midwifery Council (NMC).
The revised NMC Code states that Nurses and Midwifes must: ‘Have appropriate arrangements in place for patients to seek compensation if they have suffered harm’. It places a requirement on the individual to: ‘have in force an indemnity arrangement which provides appropriate cover for any practice [they] undertake as a nurse or midwife in the United Kingdom’.
Those registrants who are employed by the NHS will already have an appropriate indemnity arrangement. The NHS is vicariously liable for work carried out on their behalf by their employees, which means that registrants are covered if a claim is made against them in that employment. However for the many thousands of registrants who are not employed by the NHS, or who conduct both NHS and non-NHS work, it is essential for them to understand the ramifications of the new rules.
Those working outside the ‘protection’ of NHS employment should be aware that:
The need to have an indemnity arrangement is now a mandatory requirement of the NMC Code;
Registrants are required to self-declare that they have in place, or will have in place, an appropriate indemnity arrangement if they practise in the UK;
It is a professional responsibility of each nurse and midwife to ensure that they have cover which is appropriate to their role and scope of practice, and its risks;
The cover that they have in place should be relevant to the risks involved in their practice, so that it is reasonably sufficient in the event that a claim is successful against them;
While the arrangement does not need to be individually held by the nurse or midwife, it is their responsibility to ensure that appropriate cover is in force;
If it is discovered that the nurse or midwife is practising without an appropriate indemnity arrangement in place they will be removed from the Register; and
For those nurses who are self-employed and who undertake a combination of employed and self-employed work, or work for more than one employer, they must ensure that appropriate indemnity arrangements are in place for each area of practice.
It is not sufficient therefore to ensure that one merely has indemnity arrangements in place but registrants will need to ensure that those indemnity arrangements are ‘appropriate’.
Clearly ‘appropriate arrangements’ will very much depend on the type of work carried out by the individual and therefore registrants should carefully review their individual practice and if necessary seek clarification from their indemnity providers that they are properly insured. Nurses employed outside the NHS (i.e. by GP practices or other non-NHS organisations) should make reasonable efforts to assure themselves that their employer has appropriate arrangements in place to protect patients.
To muddy the proverbial waters further, this change in legislation comes hand-in-hand with a recent decision by the Royal College of Nursing (RCN) to change terms of their indemnity scheme to exclude aesthetic practice and work performed under a contract of employment.
As a final thought, even if one has fulfilled all of the above criteria and ensured that ‘appropriate’ indemnity arrangements in place, this may not cover the individual for regulatory proceedings (which can be costly) and potentially have serious implications on their ability to practise.
It has therefore never been more important for the professionals to review the potential risks associated with their practice and their indemnity arrangements.
Ravi Gupta is an associate for health and social care law firm Hempsons, specialising in advising and defending practitioners with a wide range of issues including regulatory and criminal proceedings.