Health and social care regulation in the midst of the Coronavirus State of Emergency

United Kingdom

We are currently in the midst of a fast-paced and evolving situation as countries around the world bring in measures to combat the spread of COVID-19. Emergency legislation is currently being drafted which expands the government’s powers to take measures in order to deal with the outbreak. Further details are due to be announced today (17 March).

It is, of course, vitally important that careful consideration is given to the operation of our health and social care providers at this time. We have set out below some of the questions you may have as a health and social care organisation or professional:

I am health or social care professional – what might be asked of me?

In an emergency situation, you may find yourself providing assistance or care that does not form part of your usual duties. For example, the General Medical Council (‘GMC’) has warned that doctors should be prepared for the possibility that they may need to work in a clinical area outside their usual practice. In such circumstances, you should expect to receive sufficient training to prepare you to undertake such tasks.

On 3 March, the chief executives of the statutory regulators of health and care professionals in the UK issued a joint statement. The joint statement sought to assure regulated health and care professionals that, in light of the COVID-19 outbreak and the challenges that it posed, context would be taken into account when considering any concerns that may have been raised about decisions and actions taken by professionals during the course of their practice. This would include circumstances where a care professional was working outside of their usual area of expertise in order to serve the public in meeting emergency demand.

I am a retired health or social care professional – can I be compelled to assist?

There are mechanisms in place, or in the process of being passed, to enable temporary registration to be granted to some health and care professionals in order to increase resource. The Secretary of State for Health can activate Section 18a of the Medical Act 1983 in an emergency, which means the GMC can be asked to grant doctors temporary registration to increase the numbers of available medical practitioners. The GMC have indicated that, if asked to do so, they intend to first grant temporary registration to doctors who have only recently retired or relinquished their registration and licence to practise. They have stated that final year medical students may volunteer in the NHS but must not undertake any duties for which full GMC registration as a doctor is required. The Nursing & Midwifery Council (‘NMC’) and General Pharmaceutical Council (GPhC’) have announced similar approaches, with the NMC stating that they are currently working with the Department of Health and Social Care on potential emergency legislation that will allow them to grant temporary registration.

The existing legislation does not allow the GMC or the GPhC to compel qualified medical practitioners to return to practice if they are temporarily registered. There is also a focus on ensuring that only those who are considered to be fit, proper and suitably experienced are granted temporary registration.

We are a private provider of health or social care services – are we likely to be compelled to assist?

Under existing civil protection legislation, the Civil Contingencies Act 2004 (‘the Act’) (supplemented by the Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005 and statutory guidance ‘Emergency Preparedness’), there is an obligation placed upon ‘Category 1 responders’ to fulfil civil protection duties. Category 1 responders are the core emergency response organisations such as NHS bodies, local authorities and emergency services. The types of civil protection duties which Category 1 responders are required to undertake mainly revolve around risk assessing and planning for emergencies as well as working in cooperation and sharing information with the public, organisations and other local responders.

The legislation defines a second category, Category 2 responders, who are described as ‘co-operating bodies’. Category 2 responders are those which are less likely to be involved in core planning but are likely to be heavily involved in those incidents which affect their own sector, such as transport and utility companies. Category 2 responders also have obligatory duties under the Act, however, these are more geared towards co-operating and sharing information with other Category 1 and 2 responders.

The underpinning statutory guidance ‘Emergency Preparedness’ makes it clear that the Act is not intended to list every organisation that could contribute. The spirit of the Act is to encourage the participation of any organisation that can assist in planning for, responding to, or recovery from an emergency, even where they are not required to participate under the Act. Readers will have seen from recent news reports that the current government plans may entail converting hotels into temporary hospitals. The government is also currently negotiating with private healthcare providers to supply extra beds to support the NHS. Other possible options available to the government could be calling on other health and social care providers in the voluntary sectors, such as organisations providing first aid functions, ambulance services or end of life care. This is an unprecedented situation and the legislation is drafted widely enough that many organisations can be included. The statutory guidance makes it clear that the capacity and capability of organisations will be a key factor to be taken into account when considering distribution of work and resource, although the government’s emergency powers will give them a high degree of control over the activities of services within a State of Emergency.

We are a provider of health or social care services – will we still be subject to CQC requirements and regulatory inspections?

The Care Quality Commission (‘CQC’) have now announced that they will be stopping inspections from Monday 16 March 2020 during the period of the pandemic. The CQC have confirmed that inspections may still be necessary in cases where there are reported concerns of harm, but they intend to speak with providers before a physical inspection takes place. The CQC have also stated that they will continue to request Provider Information Returns from providers but will share this information with local authorities and clinical commissioning groups in order to reduce the reporting burden. The expectation appears to be that other regulatory requirements continue to be met at this time.

The emergency legislation due to be published later this week is likely to impact upon the above. If you are a health, education or social care provider and require advice and assistance in relation this fast-moving outbreak, please contact us. We are monitoring the situation daily and our team are on-hand to assist with your regulatory queries.

Professional Discipline and Regulatory Team: Rachel Cooper, Natasha Ricioppo, Sara Ellis, Katie Clarke (nee Henderson), Sophie Mahon.