Don’t simply presume you’re covered

On 15 November,2022 | In Features, Medico-Legal

Doctors working for private providers who have been commissioned to provide services to NHS patients, or undertaking extra work through NHS waiting list initiatives, should check that they hold adequate indemnity, warns Dr Sophie Haroon.

We all know we need protection for clinical negligence claims when seeing private patients. 

And we tend to think that when seeing NHS patients, state-backed indemnity provides the necessary protection in the event of a claim raised by them. 

But the NHS is always evolving, and sometimes private providers are commissioned to provide NHS services to NHS patients, and this can complicate things. 

It may all look like the NHS, but clinicians working under these arrangements may have an alternative indemnifier for claims, provided by the private provider, or may be required to arrange their own indemnity for claims. It is important to check the arrangements.

Lesson number one: Indemnity for claims arising from treating NHS patients receiving NHS care through private providers may not lie with the state.

Waiting List Initiatives 

What about the extra work you may be engaged in through waiting list initiatives (WLIs)? As the NHS ramps up its Covid-19 recovery plan and WLIs run in earnest, who is responsible for providing indemnity in the event of a claim? 

The WLI work may be run out of an NHS hospital or the independent sector. The setting may not seem relevant. You are head down, doing the work. 

Usually state-backed indemnity would provide protection against claims arising from treating WLI NHS patients. The provider commissioned to undertake the WLI NHS work can enter into an arrangement for protection for claims from the relevant state-backed clincial negligence scheme. 

However, there are a myriad of WLI arrangements across the UK home nations. Sometimes the provider does not obtain state-backed indemnity and then, importantly, clinicians may be required to obtain their own indemnity for seeing WLI patients. 

Lesson number two: State-backed indemnity does not always cover WLI NHS patients.

Check your contract

Doctors should check the indemnity arrangements in their contracts. ‘Contract?’, you ask. ‘What contract?’ 

How many jobs have you been in where you have had a formal contract outlining all the necessary working arrangements including indemnity arrangements? 

For every job, every aspect of your work – substantive, temporary, locum, WLI work – get a contract and get in writing who will protect you in the event of a claim. 

Make sure you are clear on whether or not you need to arrange your own protection for claims. And do not forget to keep those contracts, because you may need to revert to them many years from now.

Lesson number three: Contracts are important. 

Sorting out or confirming the indemnity arrangements in place may be the last thing on your mind when setting up a job, shift or some extra work. 

But it is important to know where you stand before you start. 

The GMC requires all clinicians to have the relevant indemnity or insurance in place to protect the full scope of their work and practice, regardless of who they are seeing and in what setting . 

Lesson number four: Ensure you have clarity on your indemnity arrangements prior to engaging in any work. 

Get covered

While state-backed indemnity protects against NHS clinical negligence claims, it does not provide assistance with matters such as complaints, disciplinaries, regulatory investigations, inquests and criminal investigations.  

These can be challenging to manage and costly to defend. Let your medical defence organisation know about the entirety of your work where you might need to draw on their help, including how many hours, sessions and extra bits you do such as WLI work – even if you have confirmation that there is state-backed protection.

Lesson number five:  It is essential to have membership with a medical defence body or insurer so you can request assistance with medico-legal matters not included in state-backed schemes.

Dr Sophie Haroon (right) is a medico-legal consultant at Medical Protection