Cafcass – Professional Indemnity Insurance

Estimated reading time: 7 min

Professional Indemnity Insurance covers the following example items:

  • Professional negligence – such as making a mistake in a piece of work for a service user or giving them poor advice
  • Unintentional breach of confidentiality – such as sharing sensitive service user or case information without permission
  • Defamation and libel – such as making false comments about a service user that damages their reputation
  • Loss of service user or case documents or data

As we’ve seen from Cafcass’ own complaints procedure Cafcass say that the opinion and recommendation contained within a Cafcass report is the responsibility of the individual FCA and is down to the FCA’s “professional judgement”. Cafcass rely on this to avoid any claims against themselves as an organisation for professional negligence arising from inaccurate reports, biased reporting, or damage done to families as a result.

It’s an important distinction that Cafcass are making. In effect they are saying that the reports are nothing to do with them; that reports are solely down to the individual FCA. This is extremely unusual for what is in effect a professional services organisation.

A researcher recently made a FOI request to Cafcass to ask:

“Please provide a copy of your professional indemnity insurance cover.

Please confirm whether this insurance covers your FCAs as individuals as per the following:

1. FCAs are covered by your professional indemnity insurance whilst in your employment 
2. FCAs are covered by your professional indemnity insurance after they leave your employment 
3. FCAs are not covered by your professional indemnity insurance

If you respond to say that FCAs are not covered as individuals by your professional indemnity insurance please provide any policies or training that you may have that relates to FCAs securing their own insurance policies to cover them as individuals”

Cafcass responded to say:

As an intergovernmental organisation Cafcass is exempt from the obligation to have Employers Liability Insurance and a certificate of exemption has been issued by the Ministry of Justice, a copy of which is attached.

This is interesting. The original request was quite explicit in asking for information about Professional Indemnity Insurance and no other insurance policies. Employers Liability Insurance is the insurance that an employer is required to have for things like trip hazards, health and safety issues etc and relates in no way to the Insurance cover that the researcher was investigating.

So they went back and asked again, providing some additional clarification so that there could be no confusion.

Thank you for your reply although I am confused as to why you would respond about employer liability insurance (which covers things like the cost of compensation claims arising from employee illness or injury, sustained as a result of their work for you) and not about Professional Indemnity Insurance which is what I asked about.
For clarity, and as your legal team will confirm, Professional Indemnity Insurance covers the following example items:

– Professional negligence – such as making a mistake in a piece of work for a service user or giving them poor advice 
– Unintentional breach of confidentiality – such as sharing sensitive service user or case information without permission 
– Defamation and libel – such as making false comments about a service user that damages their reputation 
– Loss of service user or case documents or data

Therefore:

Please provide a copy of your professional indemnity insurance cover.

Please confirm whether this insurance covers your FCAs as individuals as per the following:

1. FCAs are covered by your professional indemnity insurance whilst in your employment.

2. FCAs are covered by your professional indemnity insurance after they leave your employment.

3. FCAs are not covered by your professional indemnity insurance.

If you respond to say that FCAs are not covered as individuals by your professional indemnity insurance please provide any policies or training that you may have that relates to FCAs securing their own insurance policies to cover them as individuals

Cafcass responded:

Thank you for your email. Cafcass does not have Professional Indemnity Insurance for its employees.

This is worrying. But wait, surely Cafcass has professional indemnity insurance for itself?

Please provide a copy of your professional indemnity insurance cover that covers you as an organisation for claims against you for items such as the examples listed below:

– Professional negligence – such as making a mistake in a piece of work for a service user or giving them poor advice 
– Unintentional breach of confidentiality – such as sharing sensitive service user or case information without permission 
– Defamation and libel – such as making false comments about a service user that damages their reputation 
– Loss of service user or case documents or data

Cafcass responded:

Cafcass does not have professional indemnity insurance cover for employees or the organisation as a whole.

The researcher asked the HCPC about it:

Professional Indemnity Insurance covers people for instances of bad practice or negligence like those shown in the following examples:

– Professional negligence – such as making a mistake in a piece of work for a service user or giving them poor advice 
– Unintentional breach of confidentiality – such as sharing sensitive service user or case information without permission 
– Defamation and libel – such as making false comments about a service user that damages their reputation 
– Loss of service user or case documents or data

Cafcass have confirmed today in response to a FOI request that they do not provide Professional Indemnity Insurance for any of their employees (and especially FCAs who were the employees specifically identified in the FOI request).

1. Please would you confirm how many social workers currently registered with you have said that their employer covers or provides them with Professional Indemnity Insurance.

2. Please would you confirm how many self-employed or agency social workers currently registered with you have said that they provide their own Professional Indemnity Insurance.

3. Please would you confirm how many employed social workers currently registered with you have said that they provide their own Professional Indemnity Insurance.

4. Please would you confirm how many employed social workers currently registered with you have said that their union registration provides them with Professional Indemnity Insurance.

5. Please would you confirm how many social workers currently registered with you have you asked to provide evidence of Professional Indemnity Insurance in line with your Professional Indemnity Insurance requirements for registration shown on your website.

If you are able to provide a breakdown of how many of these have also registered their employer (or if self-employed or agency; their end-client) as Cafcass I would appreciate it but it is not essential.

HCPC replied to say:

Social workers (in England) are not required to have a professional  indemnity arrangement in place as a condition of registration with the  HCPC, according to the Health Care and Associated Professions (Indemnity  Arrangements) Order 2014.

The legal requirement to have in place a professional indemnity  arrangement as a condition of registration does not apply to social
workers in England (or social workers registered with their respective  regulators in other parts of the UK).

This is because this requirement has been introduced by the UK Government  to implement European legislation which applies to all the other professions registered by us but does not extend to social workers.

If an FCA hasn’t arranged their own Professional Indemnity Insurance cover or obtained sufficient cover through their Trade Union then they’re in danger of someone taking them to court for a lot of damages and having no means to personally cover the costs or any damages award.

If you then start to look at how Cafcass as an organisation views its training policies and how it monitors effectiveness of its FCAs you get a picture of an organisation hanging out its own employees to dry.

How to bring a negligence case against a Cafcass FCA

We’d like to know so if you know please do tell us in the comments below or get in touch. We suspect that it won’t be easy but we do believe that it can be done.

In order to do it you’re going to need some basics: you’ll certainly need to have made a SAR (Subject Access Request) for your entire file from Cafcass and you’ll need to know what negligent activities you’re looking for in there. You’ll also need to be able to demonstrate how this has harmed you and your family as a direct result of the individual Cafcass FCA’s negligence.

Because Cafcass say all of their reports are quality assured by a senior manager you’re going to need to know their name too. It may not be in the file but it should be. Remember that Cafcass also say that the QA of the report is also the professional judgement of the senior manager to try to avoid any culpability on the organisation.

You’ll also have had to follow Cafcass’ own complaints process all the way through to its inevitable conclusion, and almost certainly have had to escalate it to both HCPC and to the PHSO and their inevitable conclusions before you bring a private action.

That’s how we think you can get the ball rolling but we’re researchers not lawyers. Perhaps one of our friendly lawyers can comment or get in touch to correct us or to provide additional insight.

What’s the downside?

Lots – but in terms of Professional Indemnity Insurance the big one is that you are unlikely to see big payouts in damages – any satisfaction you derive from this will in all likelihood be limited to the personal assets of the individual FCA – any as such any damage claims are unlikely to be sufficient for you to right the wrongs brought down on your family by a negligent Cafcass FCA.

Unless they’re covered through their Union…

Insurance companies are funny beasts:

If you were the insurance company providing professional indemnity cover to Cafcass FCAs through their membership of a Union then you would of course be very interested to hear about how these FCAs are not sufficiently trained, how there is no real governance within Cafcass, and how the organisation itself passes all the responsibility down to the individual FCA whilst washing its hands.

If you were the insurance company you’d probably take a look at your terms and conditions of providing this professional indemnity insurance and you’d look specifically at the sections dealing specifically with the Training of Cafcass FCAs, CPD, Quality Assurance, Competencies, Experience required, Qualifications, and supervision by other Cafcass employees (who you may also be insuring).

And if you were one of the Unions involved who were providing this insurance within a membership fee you would be wondering what happens if the insurance is withdrawn or worse, one of your members is personally sued by a service user and Cafcass hang them out to dry.

Original FOI requests:

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