A question was raised at the most recent meeting of CFW’s Council about the Nursing and Midwifery Council’s requirement for all nurses to have in place “an indemnity arrangement” for their practice. 

The advice from our legal advisor, Alison Castrey, is as follows:

1. “Indemnity arrangement” does not mean “professional indemnity insurance in the nurse’s individual name”.

2. As nursing homes, you should already have in place insurance to protect you from claims against the home so that “where patients have suffered harm through the negligent action of a nurse or midwife [employed by you acting during the course of their employment], they will be able to recover any compensation to which they are entitled following a successful claim.”

See page 3 of NMC guidance note here (PDF) for more information.

3. Therefore, provided you have cover in your policies for ‘medical malpractice’ or ‘professional indemnity’ (in addition to ‘public liability’), this should already cover any negligent actions of your employed nurses whilst doing their jobs for you. However, you should specifically check with your insurers that this is the case otherwise, if queried by the nurse or the NMC, there is risk their registration will be
terminated.

4. There should be no increased premiums, because the risk is the same and the policy is the same.

5. What you do not have to insure for (and it may be wise to write to your nurses to ensure they understand this) is work other than for you e.g. if they do agency or bank work elsewhere. If they ask for the details of your insurer (and/or the policy number), you ought to give this information.

Please check with your brokers / insurers that your arrangements are as above. The only circumstances in which I could see the individual nurse actually needing to rely on your insurance are either (a) an unrepresented claimant doesn’t realise they are supposed to sue the employer, not the employee; or (b) the employer disappears or goes bust, or otherwise refuses to engage in correspondence about who their insurer is, and the claimant goes against the individual nurse knowing that there is this requirement for an indemnity and relies on the fact that the nurse will be sufficiently ‘freaked’ by a claim to ensure that it ends up on the insurer’s deesk. It has always been open to claimants to sue the individual person (doctor, nurse, solicitor, bus driver etc) but people don’t normally bother because
the employer usually has the ‘deeper pockets’. I don’t think there is going to be a rash of claims against individual nurses: the NMC’s rule (which appears to be as a result of some EU legislation) is just to make sure the claimant always has an insurance route.

NB Please let what your experience of this issue is by contacting mary@careforumwales.co.uk or melanie@careforumwales.co.uk .