The COVID-19 pandemic has permeated every aspect of health and social care, presenting significant challenges to the private sector in addition to the NHS. The situation with COVID-19 is still evolving, but the key concerns to date are highlighted in this Insight together with some practical advice on managing risk and indemnity issues which may arise.

Postponed private work

NHS England’s block booking of private hospital services, facilities and staff has highlighted a number of challenges.  Delays to private treatment may increase the risk of a future clinical negligence claim if the patient’s outcome is sub-optimal. Patient consent to any change of treatment plan must be obtained and communication between the treating clinician, the hospital and the patient will be key to minimising risk. The discussion should cover reasons and treatment options, material risks and impact on likely outcome, and be fully documented.

New NHS work

• NHS England’s block booking will also mean private clinics backfilling for NHS treatment disrupted by the COVID-19 outbreak. Clinics will need to ensure that continuity of care can be delivered, in particular that they have access to full patient records and the appropriate skill-mix of staff to deliver the service safely.
• While organisations need to comply with the Data Protection Act 1998 and the GDPR when handling patient data, the Information Commissioner’s Office has issued guidance confirming that it will ‘take into account the compelling public interest in the current health emergency when assessing data protection compliance.’ This suggests the ICO is likely to be more lenient if there is a breach.

Telemedicine

During lockdown, many consultations, particularly in general practice, have been replaced with telephone, video and online consultations. Protocols and guidelines should be reviewed to ensure that the appropriateness of the patient for remote consultation is assessed, with particular care around those with capacity issues, and staff undertaking the consultation are clear as to when a face to face discussion or examination is required.  Patient consent should be obtained to the consultation taking place remotely, including for the involvement of family members or carers. Telemedicine providers will need to ensure their governance systems are robust and that the boundaries of their and their subcontractors’ accountability are clearly understood and documented.

Workforce

Health and social care organisations need to ensure that they are complying, to the best of their abilities, with the latest guidance to keep employees safe. To protect all employees, organisations will need to comply with the government’s latest guidance on infection control. For frontline staff, they will need to comply with government and Public Health England guidance on Personal Protective Equipment (PPE).

In both cases, organisations will need to manage risk around self-isolation of suspected COVID-19 positive staff, including adequacy of numbers and appropriateness of skill-mix to deliver the service.  The care environment and sufficiency of PPE and other equipment available will need to be continually monitored and reviewed in order to ensure safety.

Indemnity

Private health and social care providers should check their indemnity arrangements to ensure the organisation and its staff are adequately covered for both clinical and non-clinical liabilities.

• Clinical negligence liability

The Clinical Negligence Scheme for Coronavirus (CNSC) provides cover for ‘healthcare professionals and others working as part of the Coronavirus response or undertaking NHS work to backfill others as a consequence…where there is no existing indemnity arrangement in place.’  The Scheme sits alongside the Clinical Negligence Scheme for Trusts (CNST) and the Clinical Negligence Scheme for General Practice (CNSGP), which will cover staff redeployed to those areas. Providers will also need to ensure that they have appropriate medical malpractice cover in place for their private services, particularly if the scope of such services has changed due to the COVID-19 pandemic.

• Non-clinical liabilities

All providers need to ensure they follow COVID-19 guidance from both government and regulatory bodies (for example, the Health and Safety Executive and Medicines and Healthcare Regulatory Agency), as this will be a condition of cover under any employer’s, public or product liability insurance policy.

In addition, providers may be entering into new arrangements and sub-contracting the provision of services during this time. It is of equal importance that providers ensure that clear indemnity arrangements are agreed and documented. If claims are made in the future, this will assist in providing clarity in respect of responsibility for the service.

Regulatory matters

• Clinicians working outside their usual area of specialty will be concerned how their actions may be judged in future.  The General Medical and Nursing and Midwifery Councils have issued joint guidance with a number of other professional organisations, acknowledging that ‘in highly challenging circumstances, professionals may need to depart from established procedures in order to care for patients and people using health and social care services’.  Context will be taken into consideration when assessing the standard of care delivered.
• Routine inspections by the CQC have been halted during the emergency.  The CQC is encouraging providers to use their discretion and act in the best way they see fit to ensure the best interests of their patients / clients are protected, with protection of life being paramount. The inspection team is available to provide advice and guidance.

Policies and procedures

In such a fast moving environment, health and social care organisations will need to keep policies and procedures under review. The way that things are done, both on the frontline and in the management of legal services and risk management teams are likely to require adapting, as the situation requires.  The sheer amount of new information will be daunting, but finding a way to triage the information to extract what is essential to the service you deliver, is likely to assist in managing the risk.

Complaints management, risk and governance may be required to be deployed to other roles as a result of the pandemic. This may result in complaints handling, internal investigations and notification of claims being missed or delayed. Organisations should seek to minimise this risk and may wish to consider outsourcing its complaints handling and risk functions to its legal services providers.

How Capsticks can help

Capsticks are a market-leading law firm advising private health and social care providers directly and through their insurers on risk and indemnity issues. For further information about how we can support your organisation, please speak to Majid Hassan, Anna Walsh, Ian Cooper or Tracy Lucas.