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Indemnity Cover During the Coronavirus Outbreak

Flora McCabe

Further to a deal announced by the Government on Saturday, as of today, Monday 23 March, the entire capacity of the private hospital sector in England is dedicated to treat coronavirus patients, and take on work the NHS is too overwhelmed to carry out. NHS England stated that the agreement will provide nearly 20,000 extra staff to help manage the surge in cases. Additionally, retired doctors and medical students are being called upon to assist and it is likely that dentists will also be asked to help. Clearly, the activities that many will be asked to perform will not be defined as their ‘day-to-day’ roles and duties; there is therefore concern around indemnity.

Staff Performing NHS Activities arising out of the Coronavirus Outbreak – Indemnity Specifics

Whilst the final details are yet to be agreed with the private hospitals, fortunately, Part 1 of section 10 of the Coronavirus Bill (”the Bill”)covers those who provide additional support in dealing with patients who have, or who are suspected of having, Coronavirus. It also covers the staff brought in to cover ‘business-as-usual’ activities, and, crucially, where such activity may be outside the scope of their normal duties. This cover is in addition to CNST cover (Clinical Negligence Scheme for Trusts) and so it does not apply where cover is already provided by CNST or CNSGP (Clinical negligence Scheme for General Practice).

Please be aware that the Bill only provides cover for medical negligence; it does not appear to legislate for regulatory or disciplinary hearings arising as a result of any care provided. Moreover, please be aware that whilst the CNST does cover the costs of inquests, the CNSGP scheme does not; we are seeking clarity in this regard. In any event, this means that you must maintain your cover for legal expenses relating to regulatory and disciplinary issues, and, in some, cases, inquests.

Despite the reassurance that the Bill offers, our mention of regulatory proceedings is a salient reminder that it remains very important to evaluate the abilities of your staff, and provide appropriate supervision wherever possible. Whilst healthcare professional regulators, including the GMC, have already committed to take into account factors relevant to the environment in which you are working, including relevant information about resources, guidelines or protocols in place at the time, you are still duty bound to remain cognisant of any GMC updates and follow any guidance provided or directives given on a real time basis

Staff Performing NHS Activities arising out of the Coronavirus Outbreak – Guidance on Activities

On the above point, the GMC’s “Guidance for Doctors” working outside their normal field of practice is key. The main things to bear in mind is that you must recognise and work within the limits of your competence as far as is practical in the circumstances. In respect of the coronavirus specifically, the GMC reiterates that patients must not be exposed to unnecessary risk, and that doctors are expected to behave responsibly and reasonably. It recognises at the same time however that difficult decisions may need to be made quickly regarding the safest and best course of action at any given time. Doctors should take the following factors into account:

  • their knowledge and skills
  • options for support from other clinicians, working collaboratively across the healthcare team
  • what will be best for the individual patient given available options
  • the protection and needs of all patients they have a responsibility towards
  • minimising the risk of transmission and protecting their own health.

At the same time, the Chief Medical Officers have informed the healthcare community that practices and hospitals need to support staff in order to enable them to use their skills in such difficult circumstances and to allow them to depart from established procedures in order to care for patients where required.

What if the Government issues a directive for me to work outside my scope of practice and such activities are considered private practice work?

Please contact us as soon as possible and provide a brief summary of what you are doing and where. Insurers are usually happy to consider providing coverage for these activities following an assessment of the exposure. Where this work is being carried out in the NHS, you need not contact us; the policy will not provide cover for this work (in accordance with cover provided by the State / Government directives) other than for the provision of defence costs and legal expenses available for any disciplinary matters arising.

Do I have to maintain my private indemnity insurance?

We at Lockton are all too aware of the financial pressures being faced by our consultant clients at this time, particularly those with an extensive private practice. Accordingly, we are working hard with insurers to achieve an affordable solution. Due to the claims made nature of the policy, it is not possible to simply cancel the policy with immediate effect. MedicaInsure polices are underwritten on a “claims made” basis. This means that claims are dealt with under the terms of the policy in force at the time the claim is notified and not the policy that was in force at the time of the original error or omission. For this reason it is important that you do not allow your insurance cover to lapse or cancel. Please note that cancellation of your policy will mean that you will be responsible for settling any claims notified during the period for which cover is not in force.

Moreover, as pointed out above, you also need to maintain cover in the event of regulatory or disciplinary action and, in the case of those working in GP practices and the out of hour’s environment, for complaints and inquests handling. Thus far in respect of saving money, insurers have advised:

  • Where there is a negative impact in excess of 10% on your estimated Private Practice activities / income, this will be addressed at your following renewal, since it is simply too early to determine the ultimate impact.
  • Where you have entered into a finance agreement arranged by us please let us know immediately so we can see if we can negotiate a deal for you.
  • MedicaInsure policies include 60 day premium payment warranty whereby we ask that payment is made of the policy within 60 days of the inception/renewal date. So, for a policy due 1st May 2020 – payment would be due 29th June 2020.
  • Alternatively, policies can be paid via Close Premium Finance whereby you can elect to pay your premium over ten monthly instalments. For existing clients paying by Instalments, we are currently working with our instalments provider to assist during this period and we are hopeful that freezing/reduced payments will be available in the coming days. An update will be provided further on this shortly.
  • Where you are due to renew your insurance, under future earnings, insert a figure reflecting the move away from private practice since you are likely to be required to provide front-line NHS activities for 3 months or in accordance with any Government directives. This is of course subject to change and you will need to monitor Government advice on cancellation of elective work and the likely period this will exist. Your accountant should be able to help with your earning projections.

Does my private indemnity insurance policy protect me if I treat a patient who has coronavirus?

It depends. Please see the points below for more detail:

  • The policies we offer provide cover where there is an injury to a patient as a result of a negligent act, error or omission arising out of the provision of medical and clinical professional services. This would apply if the act of negligence arose while treating a patient who has or may have Coronavirus.
  • These policies also offer cover for defence costs and legal expenses for any disciplinary
    matters arising from both NHS and Private Practice activities.
  • However, clinical negligence cases arising from clinical work carried out for the NHS are not covered and we repeat the guidance above regarding staff performing NHS activities as a result of the Pandemic. If you are at all unsure, please check with your relevant NHS trust for additional details.
  • Whilst the policies covers you if you end up treating a patient who has or may have Coronavirus, they do not provide cover for the transmission by you of Coronavirus to a patient(s), meaning that they will not respond to circumstances or claims where it is alleged you have transmitted the disease. This stance is in accordance with industry standards and should not impact on your day to day activities whilst responding to this pandemic or where allegations of negligence arise.

What about volunteering?

The GMC advice states that unless an emergency is declared they are unable to give any temporary registration to those who may wish to volunteer. In the event of an emergency being declared or where a registered individual wishes to volunteer, please follow the advice below:-

  • For those who do not have temporary registration, cover will not be granted;
  • For individuals granted temporary registration – please follow the above advice depending on where the work is being undertaken – NHS vs Private Practice.
  • For registered individuals who want to volunteer in line with their current scope of practice – please contact the GMC and register your interest and then follow the advice above on where the work is being undertaken – NHS or Private Practice.
  • For registered individuals who want to volunteer outside their current scope of practice – please ensure you have been granted authority and retain evidence of this in writing. Please follow the above advice on where the work is being undertaken - NHS or Private Practice

Am I covered for telephone /video consultations?

Remote consultations will become the norm for some months as efforts focus on limiting the spread of the virus. Insurers can implement cover on the same terms as if you were seeing the patient in a face to face appointment. Best practice, must be maintained including but not limited to, onward referral or scheduling a face to face appointment if the patient’s medical condition(s) require.

This is a constantly evolving situation and as such some of the guidance will change. We hope that this article assists at this uncertain time. Please do not forget that we are available to offer unlimited assistance where possible, whether in respect of your cover, your role or concerns about your welfare. We will also endeavour to keep you updated on individual Insurer views as responses may differ depending on Insurer.
As the pandemic spreads, so the advice will change. We will endeavour to update our clients with risk management information and are, as ever, always available to discuss any concerns to support our clients allowing them to focus on delivering their crucial services.

Please do not hesitate to contact us anytime on 0161 828 3326 or using the details below.
Flora McCabe
Head of Healthcare Claims
t: +442079332516
e: [email protected]