Today’s question is about professional indemnity insurance for a registered nurse and soon to be registered paramedic.  My correspondent is:

… an RN but working full time (in WA) as an ambulance officer – due to be registered as paramedic late this year.

I’ve been asked to some very casual work (4 days) on a film set making a TV commercial. Duties include making sure crew are well hydrated, sunscreen applied when filming outside and dressing small cuts/wounds if they occur. Essentially a first aid provider. Anything else would be advised to seek attention from GP. They also sometime have kids on set and like ‘extra eyes’ on them to be safe.

My job title would be set medic and I would essentially be a sub-contractor.

My question is do I need professional indemnity insurance as a nurse if I’m employed only as ‘set medic’? Someone said because it’s my highest level of education I have to be insured as such even if I’m not using those skills, but others including APHRA said unless my title is ‘RN’ I don’t need to worry.

Given my correspondent is a registered nurse (RN) I’ll refer to the various documents from the Nursing and Midwifery Board but the provisions applying to paramedics are similar if not identical.

Practise of the health profession in which the practitioner is registered

The Health Practitioner Regulation National Law as adopted in WA by the Health Practitioner Regulation National Law (WA) Act 2010 (WA) says, at cl 129:

A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner’s practice of the profession.

What does it mean to ‘practise the health profession in which the practitioner is registered’?  The Nursing and Midwifery Board’s Registration Standard: Professional Indemnity Insurance Arrangements (1 June 2016) defines ‘practice’ as

… any role, whether remunerated or not, in which an individual uses their skills and knowledge as a health practitioner in their profession. For the purpose of this registration standard, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge (working) in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.

It does not say ‘any role, whether remunerated or not, where a person is called ‘nurse’’.   The title of the position is irrelevant, it is the skill set that is used that is defining.

The Health Practitioner Regulation National Law does not define the scope of practice of the regulated professions.  It is up to registered health professionals to determine their own scope of practice, and education needs, taking into account their particular circumstances and their assessment of their own competencies.

The claim that my correspondent is not ‘using’ the skills of a nurse in the circumstances described seems to me to be clearly wrong.  A nurse has skills in dealing with patients, making assessments and experience in actually touching people to provide care etc. All those skills will be used.  The fact that other people also have those skills, the fact that a person with a first aid certificate or in fact anyone can dress small cuts and wounds does not mean that a nurse who does that task is not bringing to the task their skills and experience as a nurse.

And, with respect, the statement ‘Anything else would be advised to seek attention from GP’ must be incorrect.  There is a possibility that someone with come in with ‘something else’ and the nurse, because he or she is a nurse, will recognise that the matter is serious and advise the person to go to an emergency department or even ring triple zero for an ambulance.  A person with suspected heart attack, stroke, heat stroke or other critical conditions will not, I hope, ‘be advised to seek attention from GP’’. And the nurse, making the decision to call triple zero rather than refer a person to their GP will draw on skills, knowledge and experience as a nurse.

My correspondent’s scenario also begs the question of ‘why were they asked to do this job?’  Did they respond to an ad and if so what where the selection criteria?  Was it that the applicant must be a nurse or have relevant experience?  If it was ‘relevant experience’ did my correspondent rely on their nursing experience?  If the answer is ‘yes’ then they got the job because they are a nurse so the expectation must be that they are bringing their nursing skills and experience with them.

On the other hand did they get asked because they knew someone in the production company or were they just the right person in the right place at the right time?  Either way was the decision to ask them to do it based on the knowledge that they are a nurse?

In a recent article written by me (Michael Eburn ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australian Journal of Paramedicine http://dx.doi.org/10.33151/ajp.16.663) I wrote about a claim that paramedics would need Professional indemnity insurance ‘if they’re attending the scene of an accident on the weekend and they’re not working or where they’re doing volunteer sports trainer work with the local soccer club…’.  In that article I quoted Daubney J who, in Legal Services Commissioner v Walter [2011] QSC 132, had to identify whether a person ‘had engaged in legal practise while not a registered Australian lawyer’.  To paraphrase that decision and to put it into context of a nurse, one might infer that a person is to:

… be regarded as acting or practising as a [nurse] in one of three ways:

  1. By doing something which, though not required to be done exclusively by a [nurse], is usually done by a [nurse] and by doing it in such a way as to justify the reasonable inference that the person doing it is a [nurse];
  2. By doing something that is positively proscribed by legislation or rules of court unless done by a duly qualified [nursing] practitioner;
  3. By doing something that, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in [nursing].

It is up to my correspondent to determine whether any of those criteria apply recognising that there are no practices that ‘positively proscribed by legislation or rules of court unless done by a duly qualified [nursing] practitioner’.

Employee or contractor

The other rule is that a health practitioner does not need PI Insurance if they are covered by insurance from their employer (Nursing and Midwifery Board’s Registration Standard: Professional Indemnity Insurance Arrangements (1 June 2016), p. 2).  That begs the question of whether my correspondent is an employee.  One would infer an employer/employee relationship if the employer can set the hours of work, provides the ‘tools of trade’ (in this case the relevant first aid kit, sunscreen etc), remits tax to the Australian Tax Office, pays superannuation etc, pays wages or salaries in accordance with or based on an award or relevant enterprise agreement.  A person is more likely to be self-employed if they are responsible for providing their tools of trade, are responsible for paying their own tax, render an invoice for their services particularly if they have an ABN etc.

If my correspondent is employed and negligently treats a person, then any liability would fall to the employer who, if sensible, will have relevant insurance including workers compensation insurance if the people on the set are also employees (see https://emergencylaw.wordpress.com/?s=vicarious+liability).

If my correspondent is not employed then they are an independent contractor and will be responsible for their own liability and should, if sensible, carry relevant insurance though of course one might think the risk is so low that insurance is not warranted.

Insurance is available

It does appear that PI insurance is available.  A quick google search shows for example that members of the Australian Primary Health Care Nurses Association (APNA) can get PI for $110 and members of the Australian Nursing Federation get PI Insurance with their membership.  Guild Insurance also offers PI Insurance for nurses.

I make no comment on whether these policies would be suitable for my correspondent’s proposed work, it would be necessary to read the relevant policy information and discuss with the insurer what is proposed, but the point is that insurance is available and not difficult to obtain.

Whether PI insurance is in fact required it would be prudent to get it.  If you don’t need it but have it the cost is the premium.  If you don’t get it and there’s an issue – whether it’s a claim for civil damages or a disciplinary matter including a possible complaint of practising without insurance, the cost would be catastrophic.  A premium seems a small price to pay.

Conclusion

My view is that it is arguable that my correspondent will be practising nursing as he or she will ‘uses their skills and knowledge as a’ nurse, because you can’t leave those skills and knowledge behind.  The job title is irrelevant.

The problem is that one cannot get a definitive answer until after the event.  If my correspondent does the job and nothing adverse happens (the most likely outcome) then no-one will know or care whether there was insurance.

If there is an adverse outcome my correspondent may be subject to a civil claim (assuming that they will be a contractor, not an employee) and disciplinary proceedings.  The disciplinary proceedings may be no more than a complaint that they practised without insurance.  All that can be avoided by having relevant PI insurance which appears to be available for a low cost and a cost that can be passed onto the customer.

The question was ‘do I need professional indemnity insurance as a nurse if I’m employed only as ‘set medic’?’  The answer is ‘yes you do if you are going to use your skills and knowledge as a nurse’.  As a professional it is up to my correspondent to determine that in the first instance, and up to the Nursing and Midwifery Board and/or a Performance and Professional Standards Panel and/or the State Administrative Tribunal of Western Australia to determine if there is a complaint.

PI Insurance may not be required but if a health professional is going to offer a health service (that is ‘a service for maintaining, improving, restoring or managing people’s physical and mental health and wellbeing’ (Health Services Act 2016 (WA) s 7)) for fee as an independent contractor, PI insurance would seem an essential cost of that business.