This section of the website outlines the current position around continued indemnity arrangements and assurances during the COVID-19 pandemic.
NHS Resolution has confirmed that it does not believe that employers and employees will be at a substantially greater risk of successful legal challenges during the pandemic. However, healthcare workers will, as is currently the case, need to be able to demonstrate that they acted with an appropriate degree of reasonableness and did not behave recklessly.
It is important to note that while organisations cannot prevent patients from pursuing legal options, there will be a need to reassure staff that they will provide support in such circumstances.
Indemnity arrangements during COVID 19 pandemic
NHS staff will continue to be covered by pre-existing indemnity arrangements during the COVID-19 pandemic:
Section 11 of the Coronavirus Act 2020 provides cover for additional clinical negligence liabilities that may be specifically associated with COVID-19 when working in England and Wales, and would not be covered under pre-existing arrangements, insurance companies or medical defence organisations.
A statement developed with NHS Resolution and Capsticks provides more information about what is covered within pre-existing arrangements, as well as the additional emergency powers available to the Secretary of State in relation to indemnity under the Coronavirus Act 2020.
Who is covered by these arrangements?
The arrangements cover:
- clinical staff - including where they are being deployed to work on a different site or are seconded to a different employer
- temporary workers - including those on honorary contracts, providing there is a clear contractual relationship with the employer
- volunteers - indemnity cover must be clearly outlined in any agreement between the organisation providing the volunteering activity and the volunteer.
Safety and assurance
Where workers, students or volunteers are working outside their normal role, they need to continue to work within their scope of competence and receive adequate training and supervision. Students in particular should be properly supervised.
Registered healthcare workers should be guided by any professional codes of practice issued by the relevant professional regulatory body. For example, for medical staff the statement on Good Medical Practice issued by the General Medical Council (GMC); and for nurses and midwives, the professional code of practice 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. Further information on ensuring staff health and safety is available in the health, safety and wellbeing section.
While taking a balanced approach, employers and managers should identify any behaviours or conduct that places staff, patients or the public at risk and address it in the appropriate manner. 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, pending an investigation, as conducting hearings during the pandemic is unlikely to be possible. Any action taken must be without prejudice in the interests of patient safety. Local managers should be briefed on how to approach these issues, in particular, in ensuring any staff who may be subject to any such action is kept in touch with and has access to appropriate support during this time.
Further information about how indemnity arrangements will work during COVID-19, and frequently asked questions can be found on NHS Resolution’s website.