For many years, the Guild of Healthcare Pharmacists has always stated that when a pharmacist works in a hospital s/he is covered for Professional Indemnity through their employers’ vicarious liability arrangements. We have consistently recommended to pharmacists that they should not rely on their employers’ cover, but instead have personal protection through their own independent insurance. We have
described on pages 10 and 11 why reliance on an employer provided cover may place individual pharmacists at a significant disadvantage.
More recently, the Guild have stated on their website that they now accept that in reality many pharmacists have now taken out their own independent Professional Indemnity insurance.
The Guild’s view as it appears on their website is that this has happened because “pharmacists have felt pressurised into taking out their own professional liability insurance through influences from various quarters.”
The PDA does not accept that this is the reason why so many pharmacists have taken out their own independent protection, we simply believe it is because they have exercised common sense. It cannot be realistic to suggest that more than 5,000 who work in the hospital setting would have taken out independent
protection simply because they have felt pressurised to do so.
The Guild then goes on to state on its website that; “many pharmacists employed in the NHS work extra hours in community pharmacy and a significant number are employed part time in both hospital and community pharmacy. NHS employer’s liability will not cover work in the community pharmacy…… and whether the employer will seek to recover damages from the employee is not clear cut.”
In a brochure entitled ‘Professional Indemnity Insurance explained’ the Guild now states that there have been some ‘fairly significant shifts in thinking’. It declares that because of the new roles, particularly prescribing, some of the guidance from the Department of Health and others suggests that individual insurance was indeed a requirement. Furthermore hospital pharmacists seemed to be asking for a belt and braces approach to Professional Indemnity, if only for peace of mind.
It is, in our view good to see that the position of the Guild appears to be changing gradually; the position that they are now moving to is in essence one that has been held by the PDA since its inception and whilst we welcome their change of policy. However, we believe that this change is not only overdue, it should go further.
We feel that we have to continue to challenge the Guild on its position on Professional Indemnity, because although it has now begun to accept that there is a need, their proposed solution in our view may raise a number of potentially serious concerns.
The issues with the Guild Insurance position
Providing cover on a contingent basis
The Guild, through the Unite Union has now arranged an insurance scheme for pharmacists; the Guild website states that;
“the Unite scheme covers you for employed work……. It is dependant upon there being employers’ vicarious liability insurance in place in the first instance.”
The Guild scheme is effectively one that is based on contingent liability; it requires an employer’s insurance to be in place. It provides protection in the event that the employer’s (the NHS) insurance fails or refuses to cover the employee. We will not seek to deal with the issue of the likelihood of the NHS insurance failing in this feature, we are much more concerned with the very fact that the employer, through their NHS insurance, does seek to provide the cover and that it does pay for the pharmacist’s defence. We have always maintained that pharmacists should have the choice whether or not they want to rely on their employer’s liability arrangements at all. What the PDA has always provided is insurance protection for pharmacists in a way that means that they do not need to rely on their employer to defend them because of the conflicts of interests that this can cause. We describe the reasoning behind our concerns over vicarious liability
in some detail on pages 10 and 11.
It does not provide cover for self employed locum pharmacists
Explained in the Unite Unions (PLI) ‘Frequently Asked Questions’ (FAQs) web pages and comprehensively described in the associated insurance policy documentation as well as further endorsed in the Guild’s own explanatory material, is the very clear message that the insurance policy will only provide cover for any work undertaken in an employed but not in a self employed capacity.
An excerpt from the Frequently Asked Questions;
“Am I covered for private work?”
“Cover will apply when employed in the private sector, but will not apply if the member is self employed – i.e. working for a fee as opposed to being employed.”
Further in the FAQs it states;
“If you do self employed work, you must make your own arrangements regarding cover.”
However, elsewhere, on the Guild website it is stated that;
“pharmacists who are members of Guild and carry the additional Unite [insurance] will have cover in place whether they are a direct employee or a self employed locum”.
We believe that these apparently contradictory statements could cause confusion amongst hospital pharmacists. In a President’s monthly report (October 2010), referring to the Guilds insurance scheme, the view is reinforced that;
“those GHP members that have the contingency policy are covered when working for a pharmacy employer etc. whether as a direct employee or as a self-employed locum”
He continues,
“I am sure that many junior (and senior) pharmacist members who undertake locums will welcome reassurance from the additional cover provided for only £15.”
However, in reality, the vast majority of hospital pharmacists who work as locums especially in the community, do so on a pure self-employed basis and therefore would not be covered by the Guild scheme. We would recommend that any hospital pharmacists who have taken out a PI insurance policy should check as to whether
it meets with their requirements.
It does not provide cover for pharmacy locums working for the majority of locum agencies
We have been asked by a number of pharmacists whether the Guild scheme will provide them with cover if they are working via a locum agency. This confusion seems to have arisen because of their employment status; in the FAQ section of the Unite website which deals with the agency question, the answer given is that some agencies dealing with health professionals are deemed to be the employer and therefore the member would be covered and that Unite members are urged to check with their agency.
This answer is hardly unsurprising given the context. The Unite website has quite rightly reflected the view that in some healthcare disciplines, the common practice is that the locum healthcare professional becomes a worker of the locum agency, often they are paid by the locum agency and that their payroll is operated in the normal way as if they were an employee. In that instance the locum would be deemed an employee and would be covered under the scheme. However, when we consider how the pharmacy model works , the vast majority
of locum agencies, especially those providing services to locums in the community setting are simply directing the locums to pharmacies where they receive their pay directly from the pharmacy and do so an a self employed fee basis. Consequently, such agency locums would not be covered under the Guild scheme.
More than 5,000 pharmacists cannot be wrong
We will continue to challenge the Guild position on professional indemnity insurance. We have consistently maintained that pharmacists need to understand the wider issues relating to their professional indemnity and the personal liability risks that they carry when working as a pharmacist. We hope that in due course the Guild will come to accept that pharmacists should always rely on professional indemnity insurance but only then, if it is totally independent of their employer.
To date, more than 5,000 individuals that work in the hospital pharmacy setting have already done just that, by joining the Pharmacists’ Defence Association.
Originally published in Insight, Summer 2011