CSP urges members employed by private providers to check employer’s indemnity provisions

A recent court case in England has ruled that the NHS has a non-delegable duty of care to provide NHS services to patients, but this does not extend to being liable for the performance of those services when the services have been outsourced to private providers.

In this case, a clinical commissioning group had outsourced the provision of out-of-hours care to a private company. This company had employed a nurse to provide the service to NHS patients. The claim related to allegedly negligent advice when the patient ought to have been admitted to hospital. The nurse held their own indemnity but this was not sufficient to cover the costs of the claim. The private company confirmed it was uninsured in relation to claims against the individual practitioners employed by it.

An employer usually holds the PLI indemnity for the actions of its employees but in some cases, private companies seek to require employed registered staff to hold their own indemnity and pass claims onto individual employees.

The CSP has seen a similar case recently, where a physiotherapist employed by a private company negligently delivered acupuncture causing a pneumothorax to a patient. The private company was uninsured for its employees, leaving the physiotherapist personally liable for their proven negligence.

The CSP is urging members who are employed by private providers to deliver NHS services, for example in outsourced first contact physiotherapy services or other physio services, to check their employment contracts to ensure that their employer holds adequate PLI indemnity to cover them. 

The CSP PLI scheme does not provide any cover for employers’ liabilities, or for claims arising when members are employees. Where employers do not hold the required PLI covers, this may leave individual employees vulnerable to claims being passed to them that ought to be covered by the employer. 

Any member employed by a private company who is concerned, should contact their line manager in the first instance or their CSP steward.