COVID-19 crisis – indemnity for those being redeployed or returning to practise

30 Mar 2020

Last week the government rushed legislation through Parliament to deal with the coronavirus outbreak in the form of the Coronavirus Act.

The Act contains a range of provisions to deal with the crisis including the emergency registration of nurses and other health care professionals and social workers, the aim being to ensure that as many healthcare professionals as possible are available to the health service.

Those who return or are redeployed may well be concerned about whether they will be covered in the event that they face a claim for damages arising out of a breach of duty which results in the injury or death of a patient.

The Act indicates that the Secretary of State may grant indemnity where a person concerned was working directly with COVID-19 patients, or those suspected of having the disease, testing patients for the disease or where cover is being provided for another healthcare worker who is caring for those with COVID-19.

The Act also makes it clear however, that indemnity would not apply where other indemnity arrangements are already in place for instance through an insurance product which would provide cover in the circumstances.

In practice, if a doctor is engaged to work within the NHS this work will be covered by the Clinical Negligence Scheme for Trusts (CNST) and if it relates to a GP the CNSGP scheme will apply. Whether there would be a limit on any such indemnity is not clear as this is an issue open to the Secretary of State to determine, but it would seem unlikely.

Guidance in relation to dentists is in the process of being updated and dentists are advised to e mail for further information.

Currently the message for those returning to practice must be to check with their indemnifier, be that a defence organisation or insurer if they have cover and if not, to make sure with the NHS Trust they are clear that NHS indemnity would cover them for the role they propose to undertake.

As always, however, the NHS indemnity schemes would only provide cover in the event of a claim for damages. Practitioners are therefore also encouraged to check that they have the appropriate regulatory and disciplinary cover in place. However, Dame Clare Marx, GMC chair, has made the following comment in an email to registrants:-

“I want to assure you that we recognise the implications of this unprecedented event, and that any concerns raised about your practice will take into account the extreme circumstances in which you are working.”

A similar position has, we understand been taken by the GDC.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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