Expert advice

COVID-19: the importance of professional indemnity

What the Coronavirus Act 2020 means for those joining the NHS on the temporary register

Image of a nurse standing under an umbrella while it rains
Picture: iStock

One of the emergency measures introduced by the government to help tackle the COVID-19 pandemic is to increase the number of people available to work within the NHS.

Under the Coronavirus Act 2020, healthcare regulators have been given the powers to temporarily register healthcare professionals, including retired nurses and nursing students nearing the end of their training.

Assurances for NHS work

It is encouraging that the act also contains government assurance to provide indemnity for the NHS work undertaken by all those joining the temporary register.

Indemnity insurance is a way to protect yourself against a legal liability or loss, usually a financial loss. Professional indemnity cover is an arrangement where you pay someone, usually a company, a fee on the basis that in the event of an incident covered under the arrangement, such as a negligent act for which you are liable, they pay the legal costs of defending you plus any damages due to the third party.

Healthcare regulators require all those registered with them to hold indemnity cover for their professional practice. For nurses and midwives, this requirement is in section 12 of the Nursing and Midwifery Council (NMC) code, which states that ‘you must make sure that you have an appropriate indemnity arrangement in place relevant to your scope of practice’.

Employer liable for the actions of its employees

For most nurses and midwives, indemnity cover is provided by their employer through the legal principle of vicarious liability, where an employer is liable for the actions of its employees and would normally pay any compensation and associated legal fees.

If you work for the NHS, this is almost certainly the case. If you work elsewhere, your contract of employment should state whether an indemnity arrangement is in place. If you don’t have an employer and work independently, you will need a separate indemnity arrangement.

Generally, the only other instances where you will need a separate indemnity arrangement are if you work outside of your contractual duties, take additional duties or extend the scope of your employment.

The same protections for all NHS workers

The new registrants have not been permanently employed, so will not have an existing indemnity arrangement through an employer. This is why the assurance of explicit indemnity cover from the government for all temporary registrants, whether through temporary employment (and hence vicarious liability) or the provisions of the Coronavirus Act, is so important.

Those on the temporary register are stepping up to assist the NHS in a time of crisis. The act is designed to ensure they have the same protection as the existing NHS employees they will be working alongside.

Marc Cornock is a qualified nurse, academic lawyer and senior lecturer at the Open University. He gives his views in a personal capacity only and they do not necessarily reflect those of the RCN or RCNi