Public consultation paper

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1 Public cnsultatin paper Nvember 2012 Public cnsultatin n guidelines fr prfessinal indemnity insurance arrangements fr nurses and nurse practitiners. Please prvide feedback by t: by clse f business n 10 January Prfessinal indemnity insurance arrangements fr nurses and nurse practitiners Intrductin These guidelines have been develped by the Nursing and Midwifery Bard f Australia (Natinal Bard) under sectin 39 f the Health Practitiner Regulatin Natinal Law (the Natinal Law) as in frce in each state and territry. The guidelines prvide directin t registered nurses, nurse practitiners, their emplyers and educatin prviders abut the requirements fr prfessinal indemnity insurance arrangements (PII) under the Natinal Law. Wh needs t use these guidelines? These guidelines are relevant t: registered nurses nurse practitiners endrsed under the Natinal Law emplyers f registered nurses and nurse practitiners, and educatin prviders. Summary f the guidelines Under sectin 129 f the Natinal Law, registered nurses and nurse practitiners (endrsed under the Natinal Law) must nt practise their prfessin unless they are cvered in the cnduct f their practice by apprpriate prfessinal indemnity insurance (PII) arrangements. Prfessinal indemnity insurance arrangements The Natinal Registratin and Accreditatin Scheme (the Natinal Scheme) fr health prfessinals in Australia cmmenced n 1 July Registered nurses and nurse practitiners are tw grups 1

2 within the nursing prfessin regulated thrugh the Natinal Scheme under the authrity f the Natinal Bard. Registered nurses and nurse practitiners must have apprpriate prfessinal indemnity insurance (PII) arrangements fr practice t meet the requirements f sectin 129 (1) f the Natinal Law. This prvisin states: A registered health practitiner must nt practise the health prfessin in which the practitiner is registered unless apprpriate prfessinal indemnity insurance arrangements are in frce in relatin t the practitiner s practice f the prfessin. Sectin 5 f the Natinal Law defines apprpriate prfessinal indemnity insurance arrangements, in relatin t a registered health practitiner as:... prfessinal indemnity insurance arrangements that cmply with an apprved registratin standard fr the health prfessin in which the practitiner is registered. The Natinal Bard has develped a number f registratin standards under sectin 38 f the Natinal Law, including the Nursing and midwifery prfessinal indemnity insurance arrangements registratin standard which details the requirements relating t PII arrangements. This standard applies t all nurses and midwives registered by the Natinal Bard in Australia, and requires nurses and midwives t apply the relevant Bard-apprved guidelines fr PII arrangements in cnjunctin with the registratin standard. These guidelines utline the requirements in mre detail. Figure 1 verleaf summarises the requirements fr registered nurses and nurse practitiners wh prvide nursing services in Australia. These requirements are discussed in detail in this dcument. 2

3 Figure 1: Requirements fr registered nurses and nurse practitiners wh prvide nursing services in Australia Registered Nurse/Nurse Practitiner prviding r intending t prvide nursing services in Australia. Registered Nurse/ Nurse Practitiner in Australia under the Health Practitiner Regulatin Natinal Law (the Natinal Law) as in frce in each state and territry. Registered Nurse/ Nurse Practitiner must meet the requirements f the Natinal Bard prfessinal indemnity insurance (PII) arrangements registratin standard. Sectin 129 (1) A registered health practitiner must nt practise the health prfessin in which the health practitiner is registered unless apprpriate prfessinal indemnity insurance arrangements are in frce. Prviding nursing care as an emplyee f a health service r practice (private r public). Prviding nursing care as a privately practicing Registered Nurse r Nurse Practitiner part-time r full time. Apprpriate PII must be purchased by the Registered Nurse/ Nurse Practitiner t be able t meet the Natinal Bard s PII arrangements registratin standard. Emplyer usually prvides PII cverage fr emplyees, BUT Registered Nurse/Nurse Practitiner des need t determine if they are cvered. Registered Nurse/ Nurse Practitiner des nt need t purchase insurance if apprpriate PII is prvided by emplyer. Registered Nurse/ Nurse Practitiner has run ff cver after ceasing t prvide private nursing services. RUN OFF COVER Insurance that prtects a Registered Nurse/Nurse Practitiner wh has ceased a particular practice against claims that arise ut f, r are a cnsequence f, activities that were undertaken when he r she was cnducting that practice r business. This type f cver may be included in a PII plicy r may need t be purchased separately. 3

4 Prfessinal indemnity insurance fr registered nurses and nurse practitiners Prfessinal indemnity insurance prvides registered nurses and nurse practitiners with insurance frm civil liability 1. This insurance generally includes cver fr legal claims fr cmpensatin and assciated expenses arising frm the Registered Nurse s r Nurse Practitiner s practice. The Natinal Bard ntes that PII arrangements, particularly thse prvided by emplyers, may nt prvide cver fr matters f a disciplinary character, which d nt usually lead t awards f cmpensatin t patients, clients r ther persns wh have suffered detriment as a result f a practitiner s actin. Hwever, these matters may invlve csts fr individual practitiners. The Natinal Bard des nt require practitiners t have insurance cver fr matters which d nt invlve ptential f cmpensatin against a practitiner. Examples are unlawful r unauthrised, regulatry r disciplinary matters including breaches f prfessinal cdes r ethics. Hwever, the Natinal Bard recmmends that practitiners cnsider whether they have this cver as part f their PII arrangements whether as an individual r prvided by an emplyer and, if nt, whether they wish t btain it. Prfessinal indemnity arrangements that registered nurses and nurse practitiners shuld cnsider include: civil liability cver unlimited retractive cver, and run-ff cver. Scpe f the insurance required The Natinal Bard has described the PII arrangements required in the PII arrangements registratin standard as: Arrangements that secure fr the practitiner s prfessinal practice insurance against civil liability incurred by, r lss arising frm, a claim that is made as a result f a negligent act, errr r missin in the cnduct f the practitiner. This type f insurance is available t practitiners and rganisatins acrss a range f industries and cvers the cst and expenses f defending a legal claim, as well as any damages payable. Sme gvernment rganisatins under plicies f the wning gvernment are self-insured fr the same range f matters. The Natinal Bard requires that registered nurses and nurse practitiners have PII arrangements t cver the full scpe f their practice, whether they are emplyed in public r private health services; r in private medical practices; r self-emplyed and wrking in private practice. The Natinal Bard als recgnises that registered nurses and nurse practitiners in different types f practice will require different levels f PII cver, accrding t their individual scpe f practice and the risks assciated with that practice. In rder t understand what cnstitutes apprpriate prfessinal indemnity insurance arrangements fr each Registered Nurse r Nurse Practitiner, the Natinal Bard prvides the fllwing infrmatin that registered nurses and nurse practitiners are required t cnsider: the practice setting and type f services and care delivered; the client grup the vlume f clients t whm treatment, advice, guidance r care is prvided by the Registered Nurse r Nurse Practitiner; 1 Liability: A persn s present r prspective legal respnsibility, duty, r bligatin Frm: Peter Butt (General Editr) (2004) Butterwrths Cncise Australian Legal Dictinary, 3rd editin, LexisNexis Butterwrths, Chatswd (NSW). 4

5 the health status f the Registered Nurse r Nurse Practitiner s client grup previus histry f insurance claims and the type f claim made against the Registered Nurse r Nurse Practitiner in the past, if any the prfessinal experience f the Registered Nurse r Nurse Practitiner advice frm prfessinal indemnity insurers, prfessinal assciatins and industrial rganisatins, including advice regarding the histry and vlume f prfessinal liability claims experience by ther members f the prfessin, prvided by a relevant prfessinal assciatin advice f an insurance brker the Registered Nurse r Nurse Practitiner s current emplyment status: an emplyee wrking exclusively in public r private health services, r in private medical practices wrking as a sle practitiner (either n a full-time r part-time basis) wrking in businesses wned slely by the Registered Nurse r Nurse Practitiner, r in a partnership r cllective; r where a Registered Nurse r Nurse Practitiner is emplyed (full-time r part-time) by a cmpany that is wned slely by the Registered Nurse r Nurse Practitiner, r that is wned slely by registered nurses r nurse practitiners where the nly directrs f that cmpany are registered nurses r nurse practitiners wrking fr part f their time as an emplyee and fr anther part f their time as a Registered Nurse r Nurse Practitiner in private practice prviding nursing r nurse practitiner services in a vluntary, subsidised r therwise unpaid capacity. When applying fr registratin r renewal f registratin, registered nurses and nurse practitiners are required t declare that apprpriate PII arrangements are, r will be, in place while they practise. Run-ff cver Registered nurses and nurse practitiners in private practice are als required t have run-ff cver. Run-ff cver insures registered nurses and nurse practitiners fr claims made in the future that relate t incidents ccurring when they were practicing in the past. Registered nurses and nurse practitiners are required by the Natinal Bard t maintain run-ff cver fr the whle time after they have ceased t practise privately t be prtected against claims that may arise in the future. Run-ff cver scheme Emplyed registered nurses and nurse practitiners The majrity f registered nurses and nurse practitiners in Australia wrk as emplyees. In mst cases, this is in public r private health services, r in private medical practices. Mst registered nurses and nurse practitiners wh are emplyees are cvered by their emplyers insurance. Emplyed registered nurses and nurse practitiners are advised t check their PII arrangements with their emplying rganisatin. There are situatins where a civil claim may be made against a Registered Nurse r Nurse Practitiner as an individual. This includes situatins where emplyer-based liability cver may nt apply. Fr example, the Registered Nurse r Nurse Practitiner may have acted in a way that a curt wuld find was nt within the curse and scpe f their emplyment. 5

6 One example wuld be a Registered Nurse r Nurse Practitiner perfrming an unlawful r unauthrised act, such as in the curse f their emplyment prescribing medicines fr a client that is utside the Registered Nurse r Nurse Practitiner s scpe f practice. In such a case, the emplyer s insurance may nt accept liability fr the Registered Nurse s r Nurse Practitiner s act, shuld any frmal investigatin r legal actin ensue. Emplyed registered nurses and nurse practitiners als wrking in private practice Sme registered nurses and nurse practitiners may prvide services t clients while emplyed in public r private health services, r in private medical practices; and may als cnduct part f their practice in private practice where their emplyer s indemnity insurance wuld cver their practice. This may arise in a frmal business arrangement where a Registered Nurse r Nurse Practitiner (generally with the knwledge and agreement f their emplyers) has established a private practice, but als wrks as an emplyee in public r private health services, r in private medical practices. Registered nurses and nurse practitiners wrking in private practice and wrking as emplyees must have their wn PII arrangements in place t cver the services they prvide fr their private clients. Situatins als arise where registered nurses and nurse practitiners, as well as being emplyed in public r private health services, r in private medical practices, als prvide vlunteer nursing services r subsidised services fr charitable, aid r welfare rganisatins in Australia In each f these situatins registered nurses and nurse practitiners will be wrking in a prfessinal capacity using their skills, knwledge, judgment and experience as a Registered Nurse r Nurse Practitiner and will require PII. In sme cases, the charitable r welfare rganisatins may have purchased PII fr prfessinals wrking with them but this is nt always the case, and registered nurses r nurse practitiners may have t purchase their wn insurance. Whatever the situatin, the respnsibility is n the nurse r nurse practitiner t make the necessary enquiries and ensure the apprpriate prfessinal indemnity arrangements are in frce. Registered nurses and nurse practitiners in private practice Private nursing r nurse practitiner practice is where a Registered Nurse r Nurse Practitiner is wrking as a sle practitiner (either n a full-time r part-time basis) in a business wned slely by the Registered Nurse r Nurse Practitiner, r in a partnership r cllective; r where a Registered Nurse r Nurse practitiner is emplyed (full-time r part-time) by a cmpany that is wned slely by the Registered Nurse r Nurse Practitiner, r that is wned slely by practicing registered nurses r nurse practitiners, where the nly directrs f that cmpany are practicing registered nurses r nurse practitiners. Registered nurses and nurse practitiners may als be deemed t be wrking in a private capacity when they prvide nursing services in a vluntary capacity as an individual r as part f a prgram run by a welfare, aid r charitable rganisatin, where the rganisatin is nt frmally an emplyer and des nt have PII fr persns wrking with them as vlunteers. In all the abve situatins, registered nurses and nurse practitiners are respnsible fr purchasing the apprpriate PII t cver the scpe f their nursing practice. The PII arrangements registratin standard requires registered nurses and nurse practitiners wh hld insurance cver in their wn name t retain dcumentary evidence f their insurance and t prvide it t the Natinal Bard n request. As nted previusly, registered nurses and nurse practitiners wrking in private practice are als required t have run-ff cver. This applies t registered nurses and nurse practitiners wh wrk exclusively in private practice and thse wh may wrk in private practice fr part f their wrking time and in an emplyed capacity at ther times. 6

7 Definitins Civil liability - a ptential respnsibility fr the payment f damages fr lss r injury, fr example arising ut f a breach f a duty f care. Prfessinal indemnity insurance arrangements means arrangements that secure fr the practitiner prfessinal practice insurance frm civil liability incurred by, r lss arising frm, a claim that is made as a result f a negligent act, errr r missin in the cnduct f the practitiner. This type f insurance is available t practitiners and rganisatins acrss a range f industries and cvers the csts and expenses f defending a legal claim, as well as any damages payable. Sme gvernment rganisatins under plicies f the wning gvernment are self-insured fr the same range f matters. Retractive cver - PII arrangements which cver the insured against claims arising ut f, r in cnsequence f, activities that were undertaken in the curse f the practitiner s prfessinal practice, prir t the date f the cmmencement f the insurance. Run-ff cver means insurance that prtects a practitiner wh has ceased a particular practice against claims that arise ut f, r are a cnsequence f, activities that were undertaken when he r she was cnducting that practice r business. This type f cver may be included in a PII plicy r may need t be purchased separately. The Natinal Bard means the Nursing and Midwifery Bard f Australia. Yur feedback The Natinal Bard is seeking general cmments n the guidelines fr prfessinal indemnity insurance arrangements fr nurses and nurse practitiners. Please prvide feedback by t: by clse f business n 10 January The Natinal Bard generally publishes submissins received n the website t encurage discussin and infrm the cmmunity and stakehlders. Please let us knw if yu prefer nt t have yur submissin published, r wuld like the Natinal Bard t treat part f yur submissin as cnfidential. We will nt place n the Natinal Bard website, r make available t the public, submissins that cntain ffensive r defamatry cmments r anything utside the scpe f reference. Befre publicatin, we may remve persnally-identifying infrmatin frm submissins, including cntact details. The views expressed in submissins are thse f the individuals r rganisatins wh submit them and their publicatin des nt imply any acceptance f, r agreement with, these views by the Natinal Bard. The Natinal Bard als accepts submissins made in cnfidence. These submissins will nt be published n the website r elsewhere. Submissins may be cnfidential because they include persnal experiences r ther sensitive infrmatin. Any request fr access t a cnfidential submissin will be determined in accrdance with the Freedm f Infrmatin Act 1982 (Cth) which has prvisins designed t prtect persnal infrmatin and infrmatin given in cnfidence. 7

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