COVID-19: does the response of the regulators call for a fresh approach?

During the first wave of the COVID-19 pandemic, healthcare regulators reviewed their processes and made a joint commitment to take human and environmental factors into consideration when determining whether a complaint/incident reached the threshold for fitness to practise action.

In addition, the country saw an outpouring of support and affection for healthcare practitioners working hard to treat patients in hugely pressured and trying circumstances.

Alongside the guidance on relevant factors to consider during the life of an investigation, emergency registration was granted to recently retired practitioners under emergency powers granted by the Coronavirus Act 2020. Notably,  the GMC introduced guidance for decision makers on requests to relax or revoke sanctions or IOT orders in response to COVID-19 which allowed those whose registration was subject to restriction to apply for an early review of that restriction.

Do these changes reflect a change in what may be determined in the public interest and can healthcare professionals be reassured that such changes will remain in place once the impact of the pandemic has subsided? It may be more apposite to ask whether they should remain in place.

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Article 2: right to life in a state-funded care home?

On 10 June 2020, the Court of Appeal handed down its judgment on the case of Maguire v Her Majesty’s Senior Coroner for Blackpool and Fylde and ors. This landmark judgment considered the engagement of Article 2 of the European Convention on Human Rights (ECHR) in the context of inquests relating to vulnerable adults who lack capacity living in state-funded care homes.

The facts:

The deceased, known as Jackie, had learning disabilities, behavioural difficulties and some physical limitations. She lived in a care home supervised and funded by the local authority which provided accommodation and care for vulnerable adults, like Jackie, who lacked capacity to make decisions about their living arrangements and welfare. Jackie was subject to Deprivation of Liberty Safeguards (DoLS) and had a history of objecting to medical treatment.

Jackie died in hospital on 22 February 2017. The cause of death was 1) perforated gastric ulcer and peritonitis and 2) pneumonia. A number of failures by care staff and medical professionals were identified and investigated during the inquest. Jackie’s family were critical of actions taken during the 48 hours prior to her death including:

  1. the GP’s decision to triage Jackie by telephone instead of attending in person
  2. a failure by an NHS call handler to relay a full account of Jackie’s history to the paramedics and
  3. the absence of a care plan to address Jackie’s refusal to attend the hospital.

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MPs hear evidence of how other countries have managed COVID-19 in care homes

The Health and Social Care Committee is a cross party body of Westminster MPs that scrutinises the work of the Department of Health and Social Care and associated bodies.  It is presently dealing with several Inquiries concerning the Covid19.  One its Inquiries is looking at the management of the Coronavirus outbreak. This week it heard evidence from Hong Kong and Germany as to how these countries have managed to prevent the spread of Covid19 in care homes.

The Inquiry heard from Professor Lum, the head of Social Care at Hong Kong University and Isabell Halletz, the CEO of a German employers association for care homes.  Both gave evidence as to the strict regime put in place in respect of patients being discharged from hospitals to care homes, whereby such patients would require a negative test for Covid19 before they could be admitted to a care home.   Any persons diagnosed with Covid19 would be quarantined, as well as other people they have come into contact with.  In contrast the Department of Health and Social Care until very recently stated in official guidance that a negative test for Covid19 was not required prior to admission to a care home.

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COVID-19 crisis – indemnity for those being redeployed or returning to practise

Last week the government rushed legislation through Parliament to deal with the coronavirus outbreak in the form of the Coronavirus Act.

The Act contains a range of provisions to deal with the crisis including the emergency registration of nurses and other health care professionals and social workers, the aim being to ensure that as many healthcare professionals as possible are available to the health service.

Those who return or are redeployed may well be concerned about whether they will be covered in the event that they face a claim for damages arising out of a breach of duty which results in the injury or death of a patient.

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Dentistry amid the COVID-19 crisis

In the midst of a healthcare crisis, there has been a flurry of activity and publications aimed at the dental profession which has continued to update with the changing landscape.  Although likely to become outdated in the coming weeks possibly even days, the below provides a consolidated overview of the current guidance and advice for dental practitioners from the GDC, the four Chief Dental Officers of the devolved NHS and the BDA.

The General Dental Council

The current approach of the GDC is based on two core principles:

  1. Minimising the burden of time and attention imposed on registrants.
  2. Maximizing the flexibility of registrants to manage their professional activities in response to the challenges of COVID-19.

Business Continuity – The GDC recognise that whilst efforts may be focused on how best to deal with the changing requirements there is still a role for regulation. The GDC does not expect any dental professional to be providing treatment unless they consider it safe for both patients and the dental team. Treatment is now limited to  urgent treatment. This will surely pose questions for practitioners about how best to offer services to such patients.

CPD – For those concerned about the cancellations of face to face CPD courses, practitioners should consider other activities such as web based learning. To further reassure, the GDC highlight that it is perfectly acceptable for practitioners to submit a return of zero hours if 10 or more hours were recorded in the previous year. They state that they will look sympathetically at the circumstances of those who may be left with a shortfall for the declaration they are due to make this year and that nobody will be removed from the register due to a lack of access to CPD during this period.

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Post Covid-19 – how will this affect litigation and regulatory work in the social care sphere?

It’s impossible at the moment to predict the future as our normal way of life is disrupted in every area due to Covid-19.  However once life returns to normal, be that in weeks or months from now, what sort of issues might we see arising in litigation arising in social care?

The first and most obvious point is that the claims market will likely see a significant upsurge.  At the moment prospective claimants will probably not see making a claim for damages as a top priority.

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Coronavirus Bill: health & care practitioners

The Coronavirus Bill announced yesterday will introduce a number of emergency measures to respond to the continuing spread of COVID-19 and the increasing pressures on the provisions of care and services.

The bill addresses a number of areas relevant to health and care practitioners, including the following:

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Covid-19 update for the care sector – official guidance and measures to protect vulnerable persons in social care

In the last few days further measures have been implemented by the CQC and Department of Health and Social care to protect the most vulnerable in society who are in receipt of social care.  The official guidance can be found here. It has been separated into specific areas of residential living, home care and supported living provisions.  The guidance includes points such as:

  • Encouraging care services providers to work with local authorities to share information and plan
  • Policies in place for outside visitors to minimise transmission
  • How to deal with a suspected case of Covid-19 in residents

Some residential settings have taken matters further by banning all outside visitors.  This has been a controversial decision as some commentators think it is crucial to “flatten the curve” of infection, whilst others think this would be detrimental to residents’ well being.  This is explored further in a Guardian article here.

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On your marks!

Jeremy Hunt, when he held the position of Health & Social Care Secretary, published a letter to independent hospitals on 8 May 2018 urging them to “get their house in order and improve safety.”  One of the triggers for this was the Care Quality Commission (CQC) identifying that a third of independent hospitals “required improvement” as they demonstrated poor practice and unsafe care.

The Independent Healthcare Providers Network (IHPN) has now produced a Medical Practitioners Assurance Framework (2019) which has been described by Chair, Sir Bruce Keogh as the equivalent of firing “a starting gun …to improve care and confidence in the private sector.” A link to this framework is provided here

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Duty of candour prosecutions – is silence golden?

The statutory duty of candour has been hailed the greatest reform in patient rights in the modern era. It was brought in under the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 as amended, in response to the Mid Staffordshire Inquiry.

The regulation 20 duty of candour requirements are detailed and specific.  There is an overriding obligation to be open and transparent, coupled with clear requirements to notify patients and/or their families where there is any unintended or unexpected incident, whether this amounts to an error or not.  This notification must be prompt. Whilst the requirements are dependent upon the level of harm sustained, the underlying principles governing the provisions are focussed on ensuring that patients are kept properly informed and that errors and/or other unintended consequences are not ‘brushed under the carpet’.

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