Unite the Union Consultation Response to: Health Care and Associated Professions (Indemnity Arrangements) Order 2013

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1 Unite the Union (in Health) Professional Team 128 Theobald s Road, Holborn, London, WC1X 8TN T: E: Unite the Union Consultation Response to: Health Care and Associated Professions (Indemnity Arrangements) Order 2013 This response is submitted by Unite. Unite is the UK s largest trade union with 1.5 million members across the private and public sectors. The union s members work in a range of industries including manufacturing, financial services, print, media, construction, transport, local government, education, health and not for profit sectors. Unite represents in excess of 100,000 health sector workers. This includes eight professional associations - British Veterinary Union (BVU), College of Health Care Chaplains (CHCC), Community Practitioners and Health Visitors Association (CPHVA), Guild of Healthcare Pharmacists (GHP), Hospital Physicists Association (HPA), Medical Practitioners Union (MPU), Mental Health Nurses Association (MNHA), Society of Sexual Health Advisors (SSHA). Unite also represents members in occupations such as allied health professions, healthcare science, applied psychology, counselling and psychotherapy, dental professions, audiology, optometry, building trades, estates, craft and maintenance, administration, ICT, support services and ambulance services. Len McCluskey General Secretary

2 2 Introduction Unite welcomes the opportunity to respond to the consultation on Health Care and Associated Professions (Indemnity Arrangements) Order As part of this response, Unite has used its ongoing routes throughout the organisation to hear back the views of members which inform our response to the on line consultation questions. Consultation questions Please fill in and/or tick the appropriate response. Question 1 Do you agree that the requirement for healthcare professionals to have an indemnity arrangement in place should match the requirements set out in the Directive and place an obligation on healthcare professionals themselves to ensure that any indemnity arrangement in place is appropriate to their duties, scope of practise, and to the nature and the extent of the risk? We do not agree that it should be the responsibility of healthcare professionals to have to demonstrate that they have an indemnity arrangement in place as part of their registration. We do agree that individuals harmed due to negligent activities by healthcare professionals should be able to seek redress through compensation. However, we consider that it should and indeed must be mandatory for employers to provide the appropriate cover for their employees as this is the best way to offer protection to the public. In cases where the healthcare professional is selfemployed then it should indeed be their responsibility but the requirement for indemnity cover can be factored into their decision to take this route. As the consultation states; where an individual is employed, the employer can be liable for their acts or omissions, provided it can be shown that they took place in the course of their employment (vicarious liability). Our members increasingly tell us that employers are refusing to provide them with cover and are insisting that they take out their own at their own cost. The scheme currently provided by the union is predicated on the employer having vicarious liability and provides a top up to cover for situations where healthcare professionals are practising outside of their employment, including Good Samaritan acts. Consequently, our members are finding themselves in a position of not being fully covered. We consider that there is a high risk that more employers will take this stance. This will result in healthcare professionals, rather than benefiting from an indemnity arrangement as provided through their employer, which would be sufficient to meet the requirement for registration being required to provide their own insurance cover at significant cost to themselves. It is our view that the majority will find this unaffordable on top of their registration fee with the risk that they will practise without such cover in place which would not provide redress in cases of negligence. Indeed, healthcare professionals in high risk occupations for example paramedics may find themselves unable to obtain insurance, as is the case with independent midwives. Furthermore, we consider that ensuring that providers have the appropriate level of insurance could be ascertained by Monitor when granting a license to provide services. However, monitoring whether individuals have an appropriate level would be much more difficult and costly to police. 2

3 3 Question 2 Do you agree with the proposed definition of an indemnity arrangement? Agree ( ) Disagree ( ) Unsure ( ) We consider that the definition is open to interpretation; for example what is relevant and what is sufficient? Who will define whether cover is sufficient? Many healthcare professionals work in specialist roles that have required additional training and by their very nature would carry additional risk. However, in many cases the specialities are not recognised or annotated by the regulator therefore how would it be ascertained whether the indemnity arrangement was sufficient? In addition is it appropriate for healthcare professional to pay a higher premium for a role or qualification that is not recognised? Giving the choice of either indemnity or insurance or a combination of both provides employers with the opportunity to place the onus on healthcare professionals as it is their registration that will be at stake if the requirement is not fulfilled. We therefore consider that the responsibility of employers should be made explicit as stated by the Review Group; From the outset, there was an important distinction to be drawn in how the condition of registration could be met. For employees in the NHS or independent sector, it was intended that they should be able to satisfy the condition of registration by dint of the corporate cover that arises from an employer s vicarious liability for the acts or omissions of employees. As a result, personal cover, from a defence organisation, trade union or other body, would not be required in relation to practice as an employee. Personal cover would only be required in relation to self-employed practice. 3

4 Question 3 4 Do you agree with the proposed provisions that set out: (a) What information needs to be provided by healthcare professionals, and when, in relation to the indemnity arrangement they have in place; (b) The requirement to inform the Regulator when cover ceases; (c) The requirement for healthcare professionals to inform their regulatory body if their indemnity arrangement is one provided by an employer? It is stated in the draft legislation that it should be emphasised that if a healthcare professional benefits from an indemnity arrangement as provided through their employer this would be sufficient to meet the requirement for registration as a healthcare professional. If this is indeed anticipated to be the case, we question how the majority of healthcare professionals who are employed can be held to account for something that is the responsibility of their employer. For example how would a healthcare professional be able to ensure that their employer has adequate cover and what will happen to their registration if an employer changes their policy or withdraws their policy after the registrant has declared to their regulator that a) they have it and b) it is adequate. We also question how healthcare professionals who work across sites/organisations will ensure their cover for each organisation or role is adequate or indeed those who may have different roles will ensure cover is adequate for each role. Indemnity for staff should be a pre-requisite for any organisation delivering healthcare and we consider this is the best way to protect the public. Furthermore, we consider that these provisions as detailed could lead to more cases where redress is sought from individuals with less chance of an appropriate outcome. We do however, agree that the requirements should be applied to self-employed healthcare professionals. 4

5 5 Question 4 Do you agree with the proposal to allow healthcare professional regulatory bodies the ability to refuse to allow a healthcare professional to join, remain on, or return to, their register, or, for the GMC, to hold a licence to practise unless they have an indemnity arrangement in place? As previously stated we do not agree with the responsibility being placed on the majority of individual healthcare professionals who are employed. A healthcare professional is only able to secure a job in their chosen profession if their name is recorded on the statutory register. Indeed, registration is an essential factor on person specifications and those who are not able to demonstrate this are not shortlisted. Healthcare professionals applying for their first job or after a period of unemployment who do not have a current employer will not have an indemnity arrangement in place and will not be able to register if these proposals are put in place as detailed. Question 5 Do you agree with the proposal to permit healthcare professional regulatory bodies to remove a healthcare professional from their register, withdraw their license to practise, or take fitness to practise action against them, in the event of there being an inadequate indemnity arrangement in place? Agree ( ) Disagree ( ) Unsure ( ) We reiterate our view that the majority of healthcare professionals should be covered by their employer and therefore would have no control over the adequacy of cover. It would be the responsibility of self-employed individuals and if they fail to ensure adequate cover then there would need to be a sanction. However, the Review Group stated that making the presence of indemnity cover a statutory condition of registration has the unique advantage that, when supported by appropriate powers, enforcement action can be taken through low cost administrative procedures rather than high cost fitness to practise procedures. This proposal therefore seems to be against this view. We would also question whether the regulators are in a position to deal with a potential increase in fitness to practise referrals as some struggle with their current caseloads and cases take a considerable time to process. If they do not have the capacity, public protection will not be served. 5

6 Question 6 6 Please provide any information with regard to the potential barriers to independent midwives moving to alternative governance and delivery practices in order to obtain appropriate indemnity arrangements. We do not have independent midwives among our membership. Question 7 Do you agree that the provisions in the Draft order should only apply to qualified healthcare professionals and not students? Agree ( ) Disagree ( ) Unsure ( ) We consider that this question is complex. Registered healthcare professionals can move into a new field of practice requiring them to again have student status. For example a student health visitor or school nurse is already a qualified nurse or midwife and must remain so during training. Therefore if these proposals are enforced they would be required to demonstrate cover in order to remain on the register. As stated this should be provided by their employer. However, they may not have full employment status during training and we would not agree with them being required to take out their own insurance during this period. Question 8 Are there any equalities issues that would result from the implementation of the Draft Order which require consideration? If so, please provide evidence of the issue and the potential impact on people sharing the protected characteristics covered by the Equality Act 2010: disability; race; age; sex; gender reassignment; religion & belief; pregnancy and maternity and sexual orientation and carers (by association). We have looked at the equality issues from the view point of registered healthcare professionals. We consider that the proposals if implemented as detailed would impact negatively on female healthcare professionals. 25% of the workforce work part-time and 80% are female (NHS Employers). This group of staff are also more likely to have child care and caring responsibilities. Question 9 Please provide comments as to the accuracy of the costs and benefits assessment of the proposed changes as set out in the Impact Assessment (including, if possible, the provision of data to support your comments). There is no differentiation between the professions which pose different risks. Therefore, there is not enough information to comment on accuracy of the figures. 6

7 Question 10 7 Please provide information on the numbers of self -employed registered healthcare professionals and whether they are in possession of indemnity cover or business insurance which includes public liability insurance and professional indemnity insurance. We do not hold this information. Question 11 Please provide information on the numbers of employed healthcare professionals who, in addition to working in an employed capacity covered by an employer s arrangement for indemnity or insurance, undertake self-employed practice. Where possible, please provide information as to whether they are in possession of indemnity cover or business insurance which includes public liability insurance and professional indemnity insurance for that self -employed element of their practice. Our Professional Liability Insurance policy does not cover self-employment. Question 12 Do you have views or evidence as to the likely effect on costs or the administrative burden of the proposed changes set out in the Draft Order? Please provide information/examples in support of your comments. We are unable to comment on the effect of costs or the administrative burden for the healthcare regulators. However, we have estimated that there would be a potential increase for our members of per month. Question 13 Do you think there are any benefits or drawbacks that are not already discussed relating to the proposed changes? Please provide information/examples in support of your comments. If the liability rests with the employer then the proposals have the potential to benefit public protection. The public would have the assurance that all healthcare staff have indemnity cover and therefore may be confident in using the services. Whilst the proposals could act as a catalyst to encourage accountability of healthcare professionals, there is a risk that they could negatively affect public protection by increasing the number of uninsured healthcare professionals. As stated many healthcare professionals may either find they are unable to acquire appropriate cover or that it is unaffordable and as a result will work for a period of time without cover. If they are to go ahead then we believe consideration should be given to the creation of an organisation similar to the Motor Insurance Bureau in order to protect those who are unable to secure compensation from individuals. We are concerned about the potential for transferring liability from the employer to the individual. The requirement for a Disclosure and Barring service check was the responsibility of employers. Now however, the burden is being transferred to employees. 7

8 Question 14 8 Do you have any comments on the draft order itself? Yes ( ) No ( ) We do not consider that people will fully understand the implications of the Draft Order in terms of the responsibility on the individual or the employer. The draft Order should where applicable, refer to other legislation, such as that concerned with the responsibilities of employers. Is this the right time to be introducing new legislation when the Law Commission are still to publish their review and there may be interdependencies? There is a serious question concerning liability. More complex care is increasingly being delivered by healthcare staff who are not regulated, although some may be on voluntary registers. There will be no requirement for them to have or to be covered. This is confusing to the public and offers them no protection. Question 15 What are your views on extending the requirement to hold an indemnity arrangement as a condition of registration to all professionals statutorily regulated by the Health and Care Professions Council? This would cover Social Workers in England only. The public will assume that all those who are registered with a statutory regulator have the same insurance/indemnity arrangements. Social Workers, like healthcare professionals should be covered by their employer unless they are self-employed. This response is submitted on behalf of Unite the Union by: Rachael Maskell Unite, Head of Health 17 May 2013 For further information on this written response, please contact: Jane Beach, Unite Professional Officer for the Health Sector Tel: Unite the Union Unite House 128 Theobalds Road, Holborn, London, WC1X 8TN Response to: Mike Lewis Professional Standards 2N12 Quarry House Quarry House LS2 7UE

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