This discussion flows on from an earlier discussion – Professional Indemnity Insurance for NSW Paramedics (January 30, 2016).  A correspondent has written to me regarding a discussion taking place on a FaceBook page with respect to nurses.  The issue was raised when a newly registered nurse asked if they should join the union and the issue of Professional Indemnity Insurance arose.  My correspondent said:

This might impact future paramedics so thought it worth passing on for your input/ comment.

Discussion in this thread about union membership turned to professional indemnity insurance. Lots of opinions why you need it and what AHPRA guideline imply. From what I read with previously though, vicarious liability is not dependent on whether you perform correctly or not but the fact that you are employed.

I won’t pass the link to the discussion as it is a nurses’ discussion and they may not want others joining in (though I could go there so it’s not a private group) but a summary of some of the comments are:

  • … our employer usually provides PI insurance…don’t let unions scare you into thinking otherwise…better to spend your money on a professional back up and education.
  • If you work within your scope of practice you’re covered by the hospitals indemnity insurance
  • [That’s] not going to happen. If you don’t follow protocols and procedures 100% they will not cover you. If it’s you against a medico, you can forget it.
  • …but if you’re not following protocols and procedures then you’ve done the wrong thing, so even your own personal indemnity insurance won’t cover that
  • … say for example you cause injury to a patient. If the hospital say you weren’t wearing correct footwear ( for example Velcro instead of lace ups), they can say you weren’t in the correct uniform and may not cover you. They will do whatever they can to not cover you. And if there’s ever an issue with you and a medico, they will cover the Medico…

The relevance to paramedics is that it has been announced that paramedics will, by 2018, be brought under the Health Practitioner National Law.  This is the law that governs 14 other registered health professionals including doctors and nurses.  They are all required to carry professional indemnity insurance but where they practice solely as an employee they can rely on the cover that is necessarily provided by their employer.

An employer is vicariously liable for the conduct of its employees.  If the employee is negligent the employer is liable.  That is not something employers do because they’re nice, it’s the law.  So, claims that ‘If you don’t follow protocols and procedures 100% they will not cover you’ are just wrong.  If you don’t do anything wrong, there is no negligence and so no issue of liability.  Further the example of you weren’t wearing correct footwear (for example Velcro instead of lace ups), they can say you weren’t in the correct uniform and may not cover you’ is also wrong.  That would simply not be an issue.  The plaintiff sues the employer alleging the nurse was negligent, they must show the negligence caused the harm (the footwear will be irrelevant) in which case the employer is liable.

Further claims that ‘but if you’re not following protocols and procedures then you’ve done the wrong thing, so even your own personal indemnity insurance won’t cover that’ is also wrong.  PI insurance is there to shift liability but it only works if it does so when there has been negligence.  If your car is insured and you cause an accident that is when the insurance is relevant – if you are at fault they pay out.  If they didn’t the policy would be worthless.  The same is true for PI insurance. The insurer collects a premium from everyone on the assumption that most people won’t negligently injure their patient or client, but some will and the insurer makes good that loss.  They ONLY pay out when the insured has done the wrong thing, or failed to follow ‘protocols and procedures’.  If you think they won’t pay out in those circumstances then there’s no point paying for the policy.

So assuming the same registration rules apply to paramedics (and they are likely to), paramedics will need to show that they have PI cover but if their practice is solely as an employee that will probably be sufficient.

The other issue though is that this covers only liability to a patient who is injured.  Personal PI insurance, and or union membership, usually offers much more. In particular, vicarious liability will mean that one’s employer is liable to pay damages to an injured patient, but it will not provide assistance if the nurse/paramedic is subject to professional discipline or if their employer tries to take disciplinary action.  Having your own insurance, or being a member of the relevant union, would provide assistance there.

Do employed nurses, or paramedics, need their own PI or to join their union?   The answer is probably not for registration purposes, but their insurer or union may offer protection far beyond what is captured by the doctrine of vicarious liability and the individual may think that is well worth the cost.

And for the final words: