Legal and practical considerations for the vicarious liability and indemnity arrangements: Key points10/12/21
The topic of vicarious liability continues to evolve especially when considered alongside the issue of a non-delegable duty of care in the health setting. In our recent webinar, we welcomed a panel of speakers to discuss the issues and how they may impact health providers as well as their insurers. In case you missed it, the webinar can be viewed here. In summary:
David Myhill presented a very helpful summary of the developments in the case law dealing with vicarious liability. Find more details here. Key takeaway points included the shift in the law since the Barclays Bank decision and the ways in which non-delegable care remains a crucial concept in healthcare following the High Court decision in Hughes v Rattan (2021).
Flora McCabe considered how, post-Paterson, the insurance market is changing and, consequently, which products and specific clauses to opt for. She explained who the different parties in the insurance landscape are, what advice an insurance broker can give on the types of cover needed and what checks on their documentation a health provider should be carrying out every year.
Sarah Bryant looked at the evidence needed to resolve disputes over who should be liable for the actions of independent contractors and who the correct indemnifier will be. In particular how retaining and requesting contractual information and confirmation of cover is evidentially crucial, and the different ways liability can be addressed between the parties.
Our top tips for dealing with vicarious liability and indemnity
- Retain key documents: these include contracts, practising privileges and indemnity confirmation (remember claims can go back decades). If you’re having a systems upgrade or migration, make sure these documents are migrated too.
- Make sure you know how to access evidence to deal with the argument that you have discharged the non-delegable duty of care. You might need proof of:
- the Contract for Services and indemnity confirmation
- evidence of monitoring of clinical practice
- the requirement for clinicians to notify of claims, whether in the NHS or in the private sector
- the audits of outcomes (if conducted). Make sure the information is shared between the NHS and private sector.
- evidence that clinicians’ qualifications have been checked prior to their engagement or provision of practising privileges
- signed and dated copies of the NHS Contract and other key documents.
- Aim to clarify the position behind the scenes with the other Defendants at the earliest possible stage. Options include behind the scenes agreements for one party to take over the defence, as well as apportioning the liability or a stay of proceedings while apportionment is resolved (note that the best party to remain in is the party with access to witness evidence).
How Capsticks can help
Capsticks aims to be the firm of choice for private health providers and their insurers, advising on all aspects of indemnity, insurance coverage and claims. For further information on any of the issues please contact Majid Hassan or Sarah Bryant.