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Clinical Negligence and NHS Indemnity

View profile for Kimmo Boote
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A Definition of Clinical Negligence and NHS Indemnity

Clinical negligence is defined as:

“Professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice and which causes injury or death to the patient. The negligence is either admitted by the health care provider (or their representatives) or is determined as such through legal process.”

In the pursuance of a medical negligence claim, there has to be a breach of duty of care (i.e. the standard of care that would be expected was not reached) this may have been due to a failure to do something or not to do something, to have given incorrect advice or not to have given advice.

The breach of duty of care then has to lead to harm, which leads to a complaint by the patient, or on behalf of the patient, about the care that was given. The resulting harm has to be one that is recognised by the courts as requiring compensation as a result of the breach of duty of care and the subsequent harm that arose. Importantly, the harm complained about by the patient or their representative must have been reasonably foreseeable as a consequence of the breach of duty.

The NHS provides an indemnity to healthcare professionals who are found to have been negligent and are therefore liable to pay compensation and legal costs to a claimant and their representatives. Those professionals that are covered under the NHS indemnity are :

  • Hospital doctors
  • Pharmacy practitioners
  • Nurses
  • Midwives
  • Health visitors
  • Registered ophthalmologists
  • Dispensing opticians
  • Ambulance personnel
  • Allied professionals to medicine or dentistry
  • Laboratory staff and associated technical staff

That is provided that they were in either of these categories:

(a)

  • Employed by contract and the negligent event happened whilst being employed

Or

  • Contracted to an NHS body to provide services to whom that NHS body owed a duty of care

Or

  • Neither of the above but a duty of care was owed to the person hurt by the negligent event

 

(b)

Persons, not employed under a contract of employment and who may or may not be a health care professional, who owe a duty of care to the patient.

Included in this category are:

Charitable volunteers, people having additional training, or taking examinations, income generating schemes, researchers conducting clinical trials, medical staff with honorary contracts and locums.

For people who fall within category A or B, NHS Indemity should cover their costs, i.e. NHS bodies should accept full financial liability for when harm is determined to be due to negligence.

Those excluded include:

GPs not under contract for services, general dental practitioners, family dentists, pharmacists/optometrists, independent midwives, private hospital employees, local education authorities.

The British Medical Association makes important points about other areas that are not covered (reference 1),

‘The NHS indemnity scheme only covers medical negligence claims which arise from contracted NHS duties.'

The following are examples of eventualities and activities which are not covered:

  • defence of medical staff in GMC disciplinary proceedings for stopping at a roadside accident, and other good Samaritan acts not listed in the contract
  • clinical trials not covered under legislation
  • work for any outside agency on a contractual basis
  • work for voluntary or charitable bodies
  • work overseas
     

If you would like further information about this particular topic, or wish to discuss the possibility of bringing a claim for Clinical Negligence - or indeed any other type of injury, please contact the Dutton Gregory Clinical Negligence Team or email k.marden@duttongregory.co.uk  

NB This article does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Dutton Gregory, Solicitors..