What is not covered by the scheme?
While the indemnity scheme offers a broad range of cover, certain areas are not within its remit. Below are some examples.
Fatal Accident Inquiries (FAI) and prosecution
Costs that members incur during the course of FAIs will not be reimbursed. Similarly, there is no cover in relation to the costs of defending either the organisation or any individual employee from a statutory prosecution.
Usually landlords will insure properties and include a charge for that cost in a lease. This covers any damage to leased properties.
Vehicles and daytrips
CNORIS provides no motor cover of any description.
Members need to ensure that they have adequate motor insurance cover. When hiring vehicles, check details with the hire company. Where volunteers or employees use their own vehicles on NHS business, then members need to ensure that they have appropriate insurance themselves or their employee's insurance cover is extended.
If non-motor legal liabilities arise from the activities, CNORIS will provide cover. But, where potentially hazardous activities are undertaken, members should refer to their risk manager and/or health and safety advisor. Specific risk assessments will then take place before the activity goes ahead.
"Personal Accident" insurance
The NHS indemnity will not provide any form of “Personal Accident” cover. That’s because this is distinct from legal liability coverage.
What's the difference?
A “Personal Accident” policy responds whether or not legal liability attaches – it makes no difference. Therefore, it’s known as non-negligent coverage.
For a “Personal Accident” policy to respond it must, broadly speaking, be shown that a qualifying injury (as defined in the policy) has occurred to an insured person. In addition, there must be no need for a legal process. “Personal Accident” coverage is often considered an employee benefit.
On the other hand, legal liability coverage exists primarily to indemnify the organisation from legal action. This might arise upon injury or damage sustained as a result of the organisation's negligent conduct.
"Good Samaritan Acts"
"Good Samaritan Acts" are not part of a healthcare professional's work for the employing body. Medical defence organisations are willing to provide low-cost cover against the (unusual) event of anyone performing such an act being sued for negligence.
Category 2 work
By definition, category 2 work is not undertaken for the employing NHS body. So, CNORIS does not cover it. One example is a doctor completing reports for insurance companies. Medical defence, or insurance, cover is appropriate for the individuals who carry out this work.
Drugs and equipment
Where a defect in a drug or piece of equipment causes harm then, under the terms of the Consumer Protection Act 1987, liability lies with the manufacturer and not the healthcare professional using it. This is known as strict liability.
Under normal circumstances, NHS indemnity does not apply. Exceptions occur if there’s a question around whether or not the healthcare professional knows the drug/equipment is faulty and continues to use it. Adapting equipment is another potential exception.
Strict liability can apply if the drug/equipment is manufactured by an NHS body itself. One example is a prototype that’s part of a research programme.
Legal liability doesn’t apply when harm comes to a person but no-one has acted negligently. Unexpected side effects of drugs during clinical trials is an example of this. In exceptional circumstances – and within the delegated limit of £5,000 – NHS bodies can consider whether an ex-gratia payment can be offered. NHS bodies should not offer advance indemnities or take out commercial insurance for non-negligent harm. Ex-gratia payments shouldn’t be made for non-negligent harm where research is sponsored by a non-NHS body.
Unless agreed otherwise, such as with Forensic Services, then this type of work is not undertaken as part of an NHS body's function under the National Health Service (Scotland) Act 1978. So, it’s not covered by CNORIS. However, members will be vicariously liable for the acts and omissions of staff carrying out such work as part of their employment in the usual way.
In most cases, GPs are independent practitioners who are on contract to provide care. Therefore, they and the staff employed by them aren’t covered by NHS indemnity.
Health boards have the power to establish GP practices and the position is different for any GP practice established by a health board. This includes any out-of-hours service or prison service practice operated by a health board employing GPs.