Review of policy on professional insurance and indemnity

Transcription

1 Item11 M/10/20 July 10 Midwifery Committee Review of policy on professional insurance and indemnity For information Issue 1 The paper provides an update on the policy review of professional insurance and indemnity (PII). Recommendation 2 None Annexes 3 None Further information 4 If you require clarification about any point in the paper or would like further information please contact the author named below. Carmel Lloyd carmel.lloyd@nmc-uk.org@nmcuk.org Page 1 of 7

2 Background 5 It is generally considered to be an aspect of public protection that people receiving healthcare should be compensated for harm caused in treatment received from a healthcare professional found to be negligent. 6 Since April 2000, clinical negligence schemes have existed within the NHS in the UK. NHS bodies are considered legally liable for the negligent acts and omissions of their employees (the principle of vicarious liability) and should have arrangements for meeting this liability. NHS indemnity usually covers the actions of staff in the course of their NHS employment. It also covers people in certain other categories whenever the NHS owes a duty of care to the person harmed. Self-employed healthcare professionals, for example, nurses and midwives, are not covered by NHS indemnity and are responsible for making their own indemnity arrangements. 7 An extensive consultation on PII was undertaken by the NMC in Responses were received from a wide range of stakeholders including healthcare organisations, the professional bodies and unions, nurses, midwives and members of the public. Based on the outcome of the consultation and the legal advice the Council decided not to make PII a condition of registration or practice. 8 A statement on PII was included in the NMC code of professional conduct: standards for conduct, performance and ethics (Section 9, 2004). Further guidance was provided in NMC circulars 11/2004 (May 2004) and 22/2004 (July 2004). 9 The UK Government has been concerned about the impact of a small number of cases where uninsured professionals have been subject to a claim for negligence and the plaintiff was left with no means of redress. As of 2005, the Government indicated its intention to make PII for healthcare professionals a mandatory requirement. Both The regulation of the non-medical healthcare professions (2006) and Trust, Assurance and Safety - The Regulation of Health Professionals in the 21st Century (2007) include reference to...in response to a Government initiative, indemnity insurance is also becoming a requirement. 10 Additionally, the proposed directive of the European Parliament and Council on the application of patients rights in cross-border healthcare (Articles 5 and 6, 2008), states that: The Member State of treatment is required to ensure that mechanisms for patients to seek redress and compensation if they suffer harm as a result of receiving cross-border healthcare are in place. However, it is for the Member State to determine the nature and modalities of such mechanisms, for example, through professional liability insurance, or a guarantee or similar arrangement which is equivalent or essentially comparable as regards its purpose. 11 The DH England started a programme to implement PII as a statutory requirement for all regulated professionals as their legislative programme allowed. To date, Page 2 of 7

3 seven of the nine healthcare regulators have legislation in place to require their registrants to be covered by adequate and appropriate insurance throughout the period of registration although only three have fully implemented this. HPC and NMC have no legislation in place as yet. 12 The code underwent an extensive review in 2008 and following legal advice the statement relating to PII was amended and currently states that: the NMC recommends that a registered nurse, midwife or specialist community public health nurse in advising, treating and caring for patients/clients, has professional indemnity insurance. This is in the interest of clients, patients and registrants in the event of claims of professional negligence. whilst employers have vicarious liability for the negligent acts and/or omissions of their employees, such cover does not normally extend to activities undertaken outside the registrant s employment. Independent practice would not be covered by vicarious liability. It is the individual registrant s responsibility to establish insurance status and take appropriate action. in situations where the employer does not have vicarious liability, the NMC recommends that registrants obtain adequate professional indemnity insurance. If unable to secure professional indemnity insurance, a registrant will need to demonstrate that all their clients/patients are fully informed of this fact and the implications this might have in the event of a claim for professional negligence. 13 The NMC commenced the initial scoping of a review of its current position relating to PII in early 2009 and in February 2009 the DH England drew up the Nursing and Midwifery (Indemnity Arrangements) Draft Order 2009 for consultation. 14 There were a number of significant concerns raised by the professional organisation s representing nurses and midwives to the DH England. Following discussions between nursing and midwifery unions and departmental officials the draft order was withdrawn before being issued for consultation. 15 In May 2009, the UK Secretary of State for Health instructed officials to establish a review of the Government s policy on professional insurance and indemnity, facilitated by a review group and wider group of stakeholders including the NMC. 16 The review process intended to ascertain whether the requirement to have professional insurance or indemnity in place, as a condition of registration for all healthcare professionals, is the most effective and proportionate way of ensuring that, as far as practicable, patients secure compensation when they suffer harm through negligence on the part of a healthcare professional. 17 Council received an information paper to assist with an initial seminar discussion on 7 May 2009 prior to the NMC policy review work being commenced. The Secretary of State for Health then requested that regulators, including the NMC, who had not yet commenced framework legislation requiring compulsory Page 3 of 7

4 insurance or indemnity as a condition of registration should put on hold any activity regarding this until the review concluded and a report made to Ministers in May The DH policy review group is in the process of drawing up the final report and is expected to conclude that professional insurance or indemnity should be a condition of registration as a healthcare professional and that, where necessary, legislation should be amended accordingly. Discussion 19 In recent years attention has been drawn to a number of claims against healthcare professionals for negligence, which although small in number, have been of a relatively high profile because the professional concerned was uninsured. In such cases the patient and their family were unable to have recourse to compensation. 20 Depending on the type of employment and the nature of their work, each healthcare professional is exposed to different levels of risk, and groups of professionals differ in the frequency and severity of professional negligence claims that they potentially face. 21 There are four groups into which healthcare professionals in the UK may be broadly grouped: 21.1 those who are employed or engaged by an NHS hospital or acute trust 21.2 those who work in NHS branded care environments, such as primary care 21.3 those who work in the independent or private sector but are employed 21.4 those who work in the independent or private sector but are selfemployed. 22 For healthcare professionals who are employed or engaged directly by the NHS there is provision of indemnity cover through the National Health Service Litigation Authority (NHSLA) scheme in England and similar risk pooling schemes in Scotland, Wales and Northern Ireland. 23 NHS indemnity does not apply to medical and dental practitioners working under contracts for services. General practitioners are responsible for making their own indemnity arrangements, as are other self-employed healthcare professionals. Additionally, NHS indemnity does not apply to employees of general practices, or to employees of private hospitals local education authorities or voluntary agencies. Under the Health and Social Care Act 2009, the NHLSA may expand its schemes to cover private sector healthcare for those providing NHS services. 24 Nurses and midwives who are employees are liable for any negligent act or omission. However, as their employer is also liable on the basis of vicarious Page 4 of 7

5 liability and employers hold insurance, any legal action would most likely be taken against the employer rather than an individual employee. Nurses and midwives working in the private healthcare sector are covered by their employers liability insurance in the same way as those within the NHS. This cover is only available while working for the employer, any work undertaken outside of this would require professional insurance such as that provided by professional bodies, trade unions or commercial providers. In reality therefore, most nurses and midwives would require professional insurance in addition to the indemnity cover provided by their employer. 25 The vast majority of healthcare professionals in the UK are able to obtain insurance or indemnity cover either through range of commercial providers or through coverage provided by their employer, both within the NHS and in a private care setting. However, where healthcare professionals are employed by another organisation, or are conducting work on a self-employed basis either independently or for the NHS, cover is varied. 26 Self-employed midwives are the one group for whom no commercial coverage is currently available in the market. The lack of available insurance is the result of a combination of two main factors. Viability in that there are too small a number of members to make insurance a viable option and quantification of risk, with midwifery practice being considered high risk for insurers. Insurance companies are risk averse and equate high risk care with any care that would result in high cost payment should negligence be found. Since 2004 the requirement to pay out the equivalent of the person s income for life rather than a one-off lump sum has meant that the expense of any successful claim in maternity runs into millions of pounds. The result is that the premiums would need to be set beyond affordable levels and therefore there is no appetite within the insurance market to make insurance available for self-employed midwives. 27 There are approximately 200 self-employed practising midwives in the UK and they support the NHS in providing choice for women in the type of care they receive during childbirth. It is difficult to quantify the impact if having PII becomes a condition of registration however a proportion of women who currently seek care from self-employed midwives and the NHS which occasionally uses their services will no longer be able to do so. It is likely that some women will seek support from within their own communities and freebirth rather than seek the services of a midwife employed by the NHS who would be covered by PII. In such situations women and their families will be unable to seek redress if they or their baby should suffer harm. 28 As far as we are aware self-employed nurses are able to obtain PII although as the nature of their work changes and increases in risk so the premiums increase accordingly. 29 Nurses and midwives who work in the independent or private sector but are selfemployed are the most vulnerable to the vagaries of the insurance market. The DH policy review group is expected to recommend that where the services provided by a healthcare professional are essential, that the four health departments should facilitate a solution. Page 5 of 7

6 30 The professional bodies and unions have expressed concerns that where the regulator requires nurses and midwives to have insurance this will pass the control and definition of nursing and midwifery activities to the insurance industry. They do not believe that the insurance industry will act in a manner that promotes patient choice or enhances public protection. 31 They also argue that this would allow insurance companies, who do not have public interest as their central aim, to dictate the limits of practice. The practice of nurses and midwives is likely to be constrained at a time when roles have expanded to create a more skilled and flexible workforce, for example, the development of specialist, advanced practice and consultant nurses and midwives. 32 Of particular concern is the issue of what is considered to be adequate and appropriate insurance and indemnity cover. Where healthcare professionals are employed by an organisation other than the NHS, or are conducting work on a self-employed basis either independently or for the NHS, additional insurance to the insurance provided by their professional body may need to be purchased. For example, nurse and midwife teachers employed within a higher education institution (HEI) are often required to have professional insurance from a professional body to cover their practice as a nurse or midwife and from a teaching union to cover their practice as a lecturer. Similarly, nurse or midwife entrepreneurs require business insurance in addition to their professional insurance. Conclusion 33 Having PII does not in itself protect the public from poor practice however it is not unreasonable for the public in general to have an expectation that should a healthcare professional be negligent there should be some form of redress available to them and their family. In this respect, the requirement to have professional insurance or indemnity as a condition of registration, is consistent with the principles of good regulation. 34 Other healthcare regulators have the necessary legislation in place to require professional insurance or indemnity as a condition of registration, the NMC together with HPC are outliers in this respect. The DH and CHRE have indicated a statutory condition of registration should apply equally and unequivocally to all registered healthcare professionals; would be seen by patients and the public to do so; and would enhance patient and public confidence. 35 These two factors need to be balanced against the concerns raised in paragraphs 24 to The DH policy review group is in the process of finalising the report to be considered by the Secretary of State in July The report is expected to contain details as to the implementation of the statutory requirement including recommendations as to registration and enforcement procedures. It is also expected to set out best practice is respect of good Samaritan and good neighbour acts. Page 6 of 7

7 Resource implications 37 The project is divided into three phases: phase I policy review If Council supports the DH policy review group recommendation that professional insurance or indemnity should be a condition of registration for all healthcare professionals phase II working with the DH to amend the Nursing and Midwifery Order 2001; preparing any rules that may be required to support the implementation phase III operational, financial and organisational implementation. A business case to approve funds for phase 1 of the project has been agreed by the executive management board. Equality and diversity implications 38 An EqIA will be undertaken as part of the project. Stakeholder engagement 39 Key stakeholders have been members of the DH policy review group and will be aware of the recommendations which will be made to the Secretary of State for Health. Representatives of the professional bodies and trade unions have been informed that the NMC is recommencing work on the review of the current policy. A detailed stakeholder engagement and communication plan will be undertaken as part of the project. Page 7 of 7