Organisations cannot prevent patients from pursuing legal options but should reassure staff that they will provide support in such circumstances. Discussions have taken place with NHS Resolution about indemnity issues.
NHS Resolution has indicated it does not believe there would be a substantially greater risk of successful legal challenges to the NHS in scenarios that may arise during a coronavirus or influenza pandemic. NHS Resolution has confirmed the following:
- NHS staff will be covered by existing indemnity arrangements during a pandemic – the Clinical Negligence Scheme for Trusts (CNST) for those working in NHS trusts and the Clinical Negligence Scheme for General Practice (CNSGP) for partners and staff working in general practice. This will apply even if they are working on a different site or seconded to a different employer. Temporary staff will also be covered, provided there is a clear contractual relationship with an employer. Volunteers should have a volunteer agreement. NHS Resolution does not believe that the risk of employers or employees being sued as a result of actions taken during a pandemic is any greater, as long as the healthcare professional can show they acted with an appropriate degree of reasonableness. NHS Resolution believes the courts would take a sensible view of what was reasonable in the context of an emergency such as a pandemic. Staff should not expect to be at greater risk of being sued following a pandemic, provided they have not behaved in a reckless way.
- Reasonable steps should be taken to maintain records, as would happen normally, but the courts will take into account the emergency nature of the context when making judgments.
- Where staff or students are working outside their normal role, they need to continue to work within their scope of competence and receive adequate training and supervision. Provided these are in place, there should not be any greater risk of the employee being sued. Students in particular should be properly supervised. Registered staff should be guided by their professional codes. For example, for medical staff, the statement on Good Medical Practice from the General Medical Council (GMC) and for nurses and midwives, from the Nursing and Midwifery Council (NMC).
Employers and managers also need to be aware of their responsibility to make adequate provision for health and safety even during a pandemic, as they will be expected to take reasonable steps to safeguard staff. Legislation will remain in force, though it is anticipated that the courts would operate a reasonableness test.
Deploying clinical staff to other departments
This statement (Also below), developed with Capsticks and NHS Resolution, makes clear the coverage available through Clinical Negligence Scheme for Trusts (CNST), as well as the additional powers available to the Secretary of State in relation to indemnity as a result of the emergency powers approved by parliament this week.
While taking a balanced approach, employers and managers should identify conduct that places staff, patients or the public at risk and address it robustly. Disciplinary procedures will remain in place and cannot be altered unilaterally. However, it may be useful to reach local agreements that make provision for staff to be suspended if necessary during the pandemic, pending investigations, as conducting hearings during the pandemic is unlikely to be practicable. This would be without prejudice in the interests of patient safety. For example, it may be necessary to use suspension to remove staff from the workplace pending an investigatory process. Local managers should be briefed on how to approach these issues.
COVID-19 NHS Indemnity
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 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 honourary 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 on its website, making it clear that indemnity arrangements should not be a barrier to changed working arrangements during the pandemic.