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What is the Clinical Negligence Scheme for Coronavirus?

The Government has recently passed the Coronavirus Act 2020 in a response to the challenges posed by the pandemic, especially in relation to those facing the NHS during this time of crisis. NHS Resolution worked closely with the Department for Health and Social Care to draft a clause within the Coronavirus Act providing indemnity for clinical negligence for any coronavirus related activity not currently covered by an existing arrangement. In order to implement this clause, NHS Resolution has launched the Clinical Negligence Scheme for Coronavirus (“CNSC”).

It is intended that the CNSC will cover new contracts put in place for healthcare arrangements to respond to coronavirus, such as organisations supporting testing arrangements or Independent Contractors making agreements with NHS England and NHS Improvement to release capacity to the NHS. Membership is not required for this scheme and the contracts entered into will automatically provide indemnity under the scheme.

The CNSC will not replace existing indemnity provisions made under the Clinical Negligence Scheme for Trusts (“CNST”) and it has been confirmed that the new Nightingale Hospitals will be covered by CNST rather than CNSC. Similarly, NHS Resolution have confirmed that those doctors and nurses returning to practice from retirement, or those joining as students will be covered by the CNST or, where applicable the Clinical Negligence Scheme for General Practice (“CNSGP”). The CNSC will not cover returning midwives to the profession, but the Royal College of Midwives have confirmed that they will extend all of the benefits of membership including Medical Malpractice Insurance to returning retired midwives.

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Related FAQs

What should I do if contractor insolvency occurs?

In the event that the worst happens and contractor insolvency occurs, there are a number of steps which the employer should take immediately:

Confirm that insolvency has actually occurred and the type of insolvency (for example liquidation or adjudication) – actions taken based on rumours can have adverse consequences
Secure the site and carry out an audit of the plant, equipment and materials present – this may extend to changing the locks on site in order to prevent overzealous contractors and sub-contractors seeking to return and take what they see as their possessions. The building contract may contain a provision that these are the employer’s property, but they can be difficult to recover if they are not within the employer’s possession – possession is 9/10ths of the law!
Ensure that there are adequate insurance and health and safety arrangements in place for the site – these would usually be dealt with by the contractor and therefore may no longer be in place, so alternative arrangements may be required
Ensure that any further payments to the contractor are stopped pending a more detailed review
Consider whether any off-site materials have already been paid for and can be secured. This can however be difficult in practice where the materials are not physically within the employer’s possession

In addition, there are also a number of further actions which the employer should consider in the slightly longer term:

Investigate the options available and ascertain the cost of completing the works to assist in deciding how best to proceed
Consider whether termination of the contractor’s employment under the building contract is required, and if so take the necessary steps in accordance with the building contract
Consider whether there are any bonds or guarantees in place upon which the employer can rely, and if so assess their terms as to whether and how to make a claim
Make arrangements to complete the works – as a general rule of thumb the cost of completing the works may increase by around 30% if it is necessary to get a replacement contractor
Consider whether direct payment to subcontractors is possible or desirable
Although we would say this(!) we would strongly recommend taking legal advice, as insolvency and its implications are complex and it is easy to inadvertently fall foul of the various different requirements

Can employees on fixed-term contracts be furloughed?

Yes. Their contracts can be renewed or extended during the furlough period without breaking the terms of the scheme.

If the employee’s contract has not already expired, the contract can be extended or renewed. The employee may be furloughed provided that they were employed on or before 30 October 2020. You must also have made a RTI submission to HMRC between 20 March 2020 and 30 October 2020.

If the employee’s contract expired on or after 23 September 2020, the employee can be re-employed and furloughed. Please note that the employee must have been employed by you on 23 September 2020 and you must have made a RTI submission to HMRC between 20 March 2020 and 30 October 2020.

Can employees with caring responsibilities be placed on Flexible Furlough?

Employees who are unable to work because they have caring responsibilities resulting from the coronavirus can continue to be furloughed. For example, employees that need to look after children can be furloughed, as you have previously submitted a claim for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June.

As more people return to work, there is an increased chance of more parents having childcare issues until Schools are fully open. However, they can’t be placed on furlough unless they had been on it before. So it would likely be unpaid leave, unless the government amends the scheme to grant an exemption.

What was included in the Government’s self-employment income support scheme?

A taxable grant worth 80% of the average monthly profit over the last three years (one or two years will be reviewed for those who do not have three years of tax returns)
The grant will be capped at £2,500 per month
The scheme was initially available for three months and has been extended as necessary
Individuals claiming a grant can continue to do business (unlike employees who must not work when furloughed)

What suggestions do you have to raise the profile of the MHFA group in an organisation, particularly with agile working?

Details of your MHFAs should be posted somewhere that everyone can access easily – a specific area on an intranet or whatever alternative exists. Regular comms involving the MHFAs, webinar sessions, Q&A sessions and mental wellbeing drop in sessions are all ideas that may work well.