Lights, camera, liability: managing the risks of production medics on a UK set

Commissioning editors, also known as commissioners, regularly engage production medics on film and television sets and on location. "Production medics" is a term widely used in the broadcasting industry to collectively refer to doctors, nurses, paramedics and first aiders employed or contracted to provide healthcare support to cast and crew on set.

Engaging production medics, whether as employees or sub-contractors, carries regulatory duties and liability risks that commissioners should be aware of when onboarding and engaging them.

Who are production medics?

Production medics are generally engaged in three primary ways:

• directly by a commissioning company or its special purpose vehicle (SPV) as employees with an employee agreement;
• as independent contractors through independent contractor agreements, often as sole practitioners; or
• via independent medical companies (agencies) through purchase orders or terms and conditions, or through service agreements with the SPV.

Production medics are regulated by the Care Quality Commission (CQC) in England when providing regulated activities and, depending on their role, may also be regulated by an industry regulatory body such as the General Medical Council or Nursing and Midwifery Council.  

These regulatory bodies can in turn impose regulatory duties and liability on commissioners.

Which activities will need to be registered with the CQC?

The Care Quality Commission is an executive non-departmental public body of the Department of Health and Social Care of the United Kingdom. It was established in 2009 to regulate and inspect health and social care providers in England.

It monitors, inspects and regulates health and social care services and publishes their findings in CQC reports, which are publicly available. Where the CQC finds poor care is being delivered, or regulated activities are being delivered without authorisation, it has the power to take enforcement action.

Enforcement action can result in financial penalties and/or a criminal prosecution.

There are fourteen regulated activities which require registration with the CQC. Of those, the regulated activities undertaken by production medics most likely to require CQC registration tend to be treatment of disease, disorder or injury; diagnostic and screening procedures; transport services (including ambulances), triage and medical advice provided remotely. These are all relevant to services provided by doctors, nurses, and paramedics, who may deliver a variety of services such as first aid, counselling, emergency treatment, prescriptions, and ambulance transportation.

A full list of regulated activities can be found at Schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Who needs to register regulated activities with the CQC?

The production medic's employment status will have an impact on whether the commissioner/its SPV, the agency or the qualified production medic needs to register services with the CQC .

Where the production medic is a commissioner's or SPV's employee, it is the employing entity that will need to register registrable services with the CQC.

Where the production medic is employed by an agency, it is the agency that will need to register registrable services with the CQC.

Organisations need to register if they intend to carry on a regulated activity and are a registered company. It is the organisation itself that registers (that is, the employing entity), not its directors or the production medic.

In scenarios where the production medic will be carrying on the regulated activity by themselves (that is, as a sole trader) they will need to register with the CQC as an individual. Individuals register in their own name as a legal entity and are directly responsible for carrying on the regulated activity or activities.

What is the risk of carrying on an unregistered regulated activity?

Carrying on a regulated activity without being registered carries the risk of:

• a fixed penalty of £4,000
• a criminal prosecution which, on conviction, may lead to an unlimited fine and/or a custodial sentence of up to 12 months.
• Additional risk in the event of a claim, arising from an injury, related to healthcare services provided by an un-registered person or company.

In addition, in the event of an injury on set that leads to a legal claim, commissioners' defences against allegations that they breached their duty of care towards cast and crew may be weakened if they failed to ensure that production medics were suitably qualified and registered. It is also possible that commissioners could also find that they were in breach of insurance terms.

Are there health and safety considerations?

Failing to ensure, as far as reasonably practicable, the safety of employees and third parties affected by a business's activities may result in a corporate offence under the Health and Safety at Work Act 1974, potentially resulting in fines or even imprisonment.

This offence may be made out in the event that properly trained and qualified personnel are not employed, and so adequate due diligence and record keeping when onboarding production medics is crucial in evidencing that this duty has been met.

What CQC duties could apply to commissioners hiring production medics?

Regulation 19 imposes a duty to ensure that "fit and proper persons" are employed. The intention of this regulation is to make sure that providers only employ staff who are able to provide care and treatment appropriate to their role and to enable them to provide the regulated activity (that is, that they are suitably skilled, knowledgeable and experienced).

It is important to note that "person employed" will include any member of staff who is engaged as an employee, a volunteer or contractor, as well as agency or bank staff.

Employing unfit people, or continuing to allow unfit people to stay in a role, may lead the CQC to question the fitness of a provider (the employing entity of the production medic).

If the CQC considers that a breach of this regulation is also a breach of another regulation(s) that carries offence clauses, then the CQC can move directly to prosecution without serving a warning notice. For example, in situations where the care and treatment is provided without the consent of a person using the service or someone lawfully acting on their behalf, and where it is unsafe, does not meet the person's nutritional needs, results in abuse, or puts the person at risk of abuse.

The CQC cannot prosecute for a breach of this regulation alone or any of its parts, but can take regulatory action.

It must refuse registration if providers cannot satisfy it that they can and will continue to comply with this regulation. This poses a risk to productions where commissioners cannot evidence its production medics are "fit and proper" persons, as production may be delayed while further evidence is gathered or a new production medic is sourced.

What are the regulatory registrations and qualifications relevant to production medics?

General Medical Council registration

Anyone who intends to practice medicine in the UK must register with the General Medical Council (GMC) and obtain a licence to practice. The GMC is the public body that maintains the official register of medical practitioners in the UK.

Practising as a doctor in the UK without being registered with the GMC is a criminal offence which may result in financial penalties and imprisonment. Practising without registration can also invalidate professional indemnity arrangements, meaning commissioning editors should undertake due diligence on qualifications and registrations when onboarding doctors.

Nursing and Midwifery Council registration

Anyone who wants to work as a nurse, midwife, or specialist community public health nurse in the UK must register with the Nursing and Midwifery Council (NMC).

Practising as a nurse, midwife, or nursing associate in the UK without being registered with the NMC is a criminal offence which may result in financial penalties and imprisonment. Practising without registration can also invalidate professional indemnity arrangements, and it is therefore important that commissioning editors undertake due diligence when onboarding nurses to ensure that they are currently registered with the NMC.

Health and Care Professions Council registration

Paramedics are regulated in the UK by the Health and Care Professions Council (HCPC).

Practising as a paramedic in the UK without being registered with the HCPC is a criminal offence which may result in financial penalties and imprisonment. Practising without registration can also invalidate professional indemnity arrangements, and it is therefore important that due diligence when onboarding paramedics ensures that they are currently registered with the HCPC.

Qualsafe qualifications

Paramedics should evidence their qualifications, such as their First Response Emergency Care (FREC) qualification levels (these were developed by Qualsafe and are a nationally recognised and regulated qualification, overseen by Ofqual – the UK's qualifications regulator).

The level of qualification required depends on the services provided. The Qualsafe Level 3 Award (FREC 3) covers the full range of skills required by the HSE for first aid, and is the leading qualification for events cover. FREC 3 is ideal for first responder (those first to arrive at a scene).

FREC 4 and FREC 5 are a progressive suite of pre-hospital care qualifications and allow those who achieve both to work at a level equivalent to a level 4 Associate Ambulance Practitioner.

A corporate offence for failing to provide adequate first-aid provision, including trained personnel and equipment, can lead to prosecution under the Health and Safety at Work Act 1974 and the Health and Safety (First-Aid) Regulations 1981, potentially resulting in fines or even imprisonment.

Professional Standards Authority for Health and Social Care registration

Health and care practitioners (who are not doctors or nurses) may voluntarily register with the Professional Standards Authority (PSA) for Health and Social Care.

What about insurance and liability risks?

In the UK, liability for personal injury (including fatalities) cannot be contracted out of (section 3 Unfair Contract Terms Act 1977).

Commissioner or SPV-employed production medics

At common law, an employer is vicariously liable for a tortious act (such as negligence) carried out by an employee in the course of their employment. That is, in the event of personal injury arising from the act or omission of a production medic employed by a commissioner or SPV, the employer could be vicariously liable. 

This includes situations where production medics provide medical advice that they are not authorised to provide; overreach the terms of their engagement; or advise cast and crew on the treatment of injuries not sustained on set.

Agency-employed or self-employed production medics

In the event of personal injury arising from a production medic's negligence or malpractice, commissioners could be found partially liable for damages if adequate due diligence processes were not in place when appointing them via services agreements (whether appointed as sole practitioners or via a vendor).

If production medics were appointed subject to adequate due diligence processes, then commissioners would need to evidence that to enforce the contractual indemnity for personal injury against the production medic or vendor.

What steps can commissioners take to protect themselves when onboarding production medics?

Due diligence is critical

Follow a clear and comprehensive onboarding procedure, including obtaining production medics' qualifications, regulatory registrations, and evidence of their professional indemnity insurance and public liability insurance (and maintain records of these) to evidence that "fit and proper" persons are engaged as production medics.

Regulatory registrations

Confirm whether the production medic will need to undertake regulated activities (as set out above) and, if so, who is responsible for registration with the CQC.

Guard against liability

Review professional indemnity and public liability insurance to ensure coverage is provided for vicarious liability of an employee's negligence.

Know your limits

Making sure that contractual duties are not overstepped helps to ensure that commissioners are not unwittingly assuming liability for production medics' activities.

Consider whether it is advantageous to engage production medics on a self-employed or agency basis, rather than as direct employees.

Carry out checks

Verify that agencies and self-employed production medics have suitable policies and procedures in place for providing medical support to cast and crew, and understand the terms and limitations of the medical support that they can provide.

Osborne Clarke comment

Commissioners need to navigate regulatory and liability risks when engaging production medics for work on sets and locations. By implementing robust policies and procedures and staying on top of regulatory requirements, production companies can mitigate the risk of injury to their talent and crew while also safeguarding their own regulatory and reputational standing.