Actions and omissions in the duty of care
The employing Health Board is responsible for the actions and omissions made by staff employed by the organisation. Should a complaint against the advanced practitioner be initiated, the complaint and any legal proceedings that may arise from this may be against the Health Board, the advanced practitioner or both.
In most cases any legal action that arises from a complaint is viewed as negligent care. (See case studies Standard of Care - Clinical Negligence Cases & Causation in Negligence in the Resources section). As the Health Board is vicariously liable for the practice of its employees, in most cases proceedings are initially brought against the Health Board rather than an individual staff member. However, if it can be demonstrated that the advanced practitioner acted outwith the described parameters and responsibilities of their role and acted on a "frolic of their own" (outwith their contract of employment) legal action may be taken against the individual practitioner. The Health Board may also initiate disciplinary procedures against the advanced practitioner which may lead to dismissal, referral to the NMC or both.
It is, therefore, vital that when an advanced practitioner role is initially established, there is a clear understanding between the employer and the advanced practitioner of the parameters, responsibilities and accountability structures associated with the development and that the role is covered by the employers' vicarious liability insurance. Employers vicarious liability will cover agreed activities within the workplace but does not usually extend to activities outwith the contract of employment and does not include independent practice.
The NMC Code: Standards of conduct, performance and ethics (2008) recommends that:
"a registered nurse, midwife or specialist community public health nurse, in advising treating and caring for patients/clients, has professional indemnity insurance. This is in the best interests of patients, clients and registrants in the event of claims of professional negligence."
It is for these cases outwith the contract of employment that professional indemnity insurance is recommended. The NMC also states that it is the individual practitioners' responsibility to establish their insurance status and take appropriate action.
Many advanced practitioners will already have professional indemnity insurance as part of their membership of professional organisations such as the Royal College of Nursing (RCN). The increasing demands of the clinical environment and the potential for negligence claims is recognised but the RCN do not perceive advanced nurse practitioners to be any more susceptible to negligence claims than any other nurse (RCN, 2010, p6).
