Indemnity and legal

Due to the ever-increasing pressure on our health care services during this time, employers asked for clarity regarding the application of the Clinical Negligence Scheme for Trusts (CNST) during the deployment of clinical staff to other departments, roles and clinical duties as a result of COVID-19.

NHS Resolution indemnifies those NHS organisations which are members of its schemes for clinical negligence through the NHS (Clinical Negligence Scheme) Regulations 1996. Clinical negligence is defined as:

“a liability in tort owed by a member [NHS organisation] to a third party in respect of or consequent upon personal injury or loss arising out of or in connection with any breach of a duty of care owed by that body to any person in connection with the diagnosis of any illness, or the care or treatment of any patient, in consequence of any act or omission to act on the part of a person employed or engaged by a member in connection with any relevant function of that member”.

We have received confirmation from NHS Resolution that clinical staff at NHS trusts in England will still be protected by the CNST if they are deployed to a new area of work at the trust, including one which is outside their normal speciality, or at a different trust, during the pandemic.

Under section 11 of the Coronavirus Act 2020, the government will provide indemnity for clinical negligence liabilities associated with Coronavirus which are not covered by alternative indemnity arrangements such as those provided by the CNST, insurance companies or medical defence organisations.

NHS Resolution is reassuring all NHS employees (and honorary contract holders) that levels of protection and indemnity will continue to be in place through this time. Volunteers who have been sourced by NHS trusts to assist with the delivery of clinical services will also be covered by these schemes.

NHS Resolution has clearly set out its position, making it clear that indemnity arrangements should not be a barrier to changed working arrangements during the pandemic.

The Royal College of Nursing has confirmed that if its student or retired members enter on to an emergency register at the NMC during the crisis, and if they need legal representation for employment or regulatory issues arising from their time on those registers, RCN will provide that representation even if their membership status remains that of student or retiree. Accordingly, there should be no barrier to them taking on new duties without any need to inform RCN, and they can be confident that we will provide them with the same support as if they had a full membership.

We recognise that returning midwives may also want to access to medico-legal advice and support, and it is the Government’s intention to ensure this is not a barrier to their return. The Royal College of Midwives (RCM) have confirmed they will extend all of the benefits of membership including their Medical Malpractice Insurance (MMI) cover to any retired members who join the NMC’s emergency register for the duration of the COVID-19 crisis. RCM’s MMI will provide returning midwives benefits and cover in addition to the vicarious primary liability provided by their NHE Employer, including insurance cover, legal advice and expenses and protection against claims for damages. Find out more about the RCM’s MMI terms and conditions.

We acknowledge that you may be anxious about returning to practice, especially in these unprecedented circumstances. You will be only asked to practise within your scope of competency and in line with the NMC Code. If a concern is raised about a registered nurse or a midwife while on the temporary register, these would not be dealt with by way of any Fitness to Practice proceedings. However, where there were justifiable concerns the NMC Registrar would have the power to remove you from the temporary register.

For the latest information on Home Office guidance, see Gov.uk website and for NMC updates for overseas nurses, see Nursing and Midwifery Council website.

If you need additional support around immigration issues then speak to your line manager, the corporate nursing team or the human resources department within your health or care organisation.

Union members may also be able to access legal services, immigration advice and other professional services. See your union’s website for more information.