The SoR has written to NHS Employers to ask them to consider the risk to them, their workers and patients that arises when engagement of bank staff is outsourced to recruitment agencies.
The Executive Director for Industrial Strategy and Member Relations, Dean Rogers explains, “An increasing number of NHS employers seem to think it is easier to outsource Bank arrangements via an agency than manage overtime and cover arrangements themselves. However, you can’t outsource your duty of care. Critical cracks seem to be opening up because important checks are being skipped – including if primary professional indemnity cover is in place. At an inquest the coroner won’t be interested in any NHS excuses.”
All employers must offer professional indemnity cover to their employees. This means if something goes wrong that results in a claim for medical malpractice or negligence, the primary liability rests with the employer. Who the employer is can be unclear when responsibility is outsourced to an agency, but most claims will be issued against an organisation, and it is likely that the court would decide that the NHS was employing its bank workers. More information.
The SoR wants the NHS to do two things:
- Put pressure on the Government to tighten the conditions outlined by NHS Resolution, to ensure NHS patients are fully protected,
- Make it a condition of any contract with an agency that terms of engagement include a written working agreement that clarifies who acts as the employer for professional indemnity cover.
SoR members can be reassured that this does not impact on our secondary indemnity cover. This is cover that guarantees additional support and advice for members independent of their employer when needed. It also protects our members if they are ‘joined’ in an action or personally sued for medical malpractice/negligence.
However, any member who works independently or via an agency is reminded that any indemnity cover relies upon identifying the employer and that primary insurance is in place. All members in this position are reminded to ask their agency for a written working agreement that clarifies who is providing the primary indemnity. Where there is doubt they should contact the SoR for advice to see if they need to take out additional cover – for example as a self-employed dentist or physiotherapist needs to do. The SoR can advise on sourcing personal insurance
Please remember it is a personal responsibility to ensure that you have a written, signed working agreement in place for any work, and that you are fulfilling your obligations as a registered professional healthcare worker by ensuring your professional indemnity insurance is fit for purpose.
Dean Rogers
Executive Director of Industrial Strategy & Member Relations
Liz Robinson
Executive Secretary and PII administrator