COVID-19 vaccinations – the right for healthcare workers to decide and the impact on social care

Most people who followed the press coverage in the UK following the public announcement of an ambitious national vaccination rollout would have foreseen the possibility for tension to exist between the public drive for everyone to be vaccinated against COVID-19 and the right of autonomy to refuse. The number of “anti-vax” conspiracy theories circulating online is simply staggering and some of the farcical claims really do beggar belief, notwithstanding the government’s attempts to allay these concerns. However, whilst many are content for individuals to make their own informed (or otherwise) decision, it becomes a far more emotive subject when the workers concerned are in the healthcare sector. Chances are, the majority of people reading this will have been affected directly or indirectly by COVID-19 and many more will have vulnerable or elderly relatives who rely upon the care and unwavering dedication of healthcare workers but it may not be a particularly comforting thought if the person providing that care to a vulnerable loved one were to refuse the vaccine.

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Optics: Remembering the basics during these extraordinary times

As the optical profession adapts to a new way of working, there are a number of themes that run through the guidance produced by the General Optical Council and professional bodies in response to the COVID-19 pandemic; professional judgement, communication and record keeping. Keeping these fundamental principles in mind should help practitioners navigate their way through these turbulent times.

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The Rise of Telemedicine

Telemedicine is a general term that refers to the provision of medical care at a distance through telecommunications technology.

Synchronous telemedicine is performed in real time, such as a video call between a patient and a provider. It can also be provider-to-provider such as when an A&E doctor consults with a remote cardiologist on the best treatment for a patient.

Asynchronous telemedicine includes “store-and-forward” technologies, such as online portals that allow patient–provider or provider–provider communications. It also includes chat bots such as those designed to help a patient decide whether to get tested for the virus that causes COVID-19 and remote monitoring of patients through wearable or implantable devices.

Advantages

Telemedicine comes in many shapes and sizes and offers many advantages over the traditional healthcare visit. Two key drivers of health and social care policy in the UK over the last decade have been related to patient convenience and controlling the growing budgetary pressures.  

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Practical steps care homes ought to be taking in light of the Government’s mandatory vaccination announcement

According to reports in the media this week, Whitehall sources are saying it is shortly about to be announced that vaccination is to be made compulsory for care home staff caring for the elderly and vulnerable and looked at for NHS staff.

This move follows a consultation by the Department of Health and Social Care (DHSC) launched in April amidst concerns raised by figures showing there have been over 40,000 deaths in care homes due to COVID-19 and a low uptake of the vaccine amongst care home staff.

International Trade Secretary Liz Truss has told the BBC that the government’s announcement of its decision on mandatory vaccination for care home staff was “very imminent.”

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“Rigid and concerning resistance” – Insight and review hearings

Dr Kevin Peter Newley v General Medical Council [2021] EWHC 1538 (Admin)

The judgment in a recent High Court appeal shines a spotlight on the need for registrants to acknowledge (although not necessarily accept) the findings made by a substantive regulatory Tribunal and to demonstrate the remedial steps taken to ensure the situation does not arise again.

Dr Newley appeared before the Medical Protection Tribunal Service facing clinical allegations concerning eight patients. His fitness to practise was found impaired and a nine month suspension order was imposed. Dr Newley unsuccessfully appealed against the tribunal’s decisions on impairment and sanction. A review hearing subsequently took place which resulted in an order of conditions being imposed. Dr Newley appealed against the decision of the review tribunal but, again, was unsuccessful. 

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An over-enthusiastic and ultimately flawed frolic – Understanding the charges and applying Kuzmin

General Medical Council v Dr Azubuike Udoye [2021] EWCA 1511 (Admin)

Dr Udoye appeared before the MPTS facing charges of dishonesty. He did not give evidence and the case concluded with a finding of no misconduct. Perhaps unsurprisingly, the GMC utilised its right of appeal, under s.40 of the Medical Act 1983. Mr Justice Holgate had no difficulty in upholding the appeal and remitting a number of allegations for consideration by a differently constituted Tribunal.

The facts of the case were that Dr Udoye qualified as a doctor in Nigeria and later sought inclusion in the GMC’s GP register. Having unsuccessfully sought a certificate of eligibility for GP registration, he joined a GP Induction and Refresher scheme (a scheme for doctors previously included in the GP register whereas Dr Udoye had never been included).

The relevant allegations before the MPTS related to Dr Udoye’s completion of the scheme’s registration form (in which he stated that he was included in the GMC’s GP register) and practising as a GP during the scheme. The Tribunal concluded:

  • that Dr Udoye had not practised as a GP as his work was supervised meaning that he had not practised as an “independent” GP; and
  • that the GMC had not proved on the balance of probabilities that Dr Udoye had acted dishonestly when completing the registration form as the evidence in terms of a dishonest or innocent explanation was finely balanced.

The GMC appealed on the grounds that the Tribunal had misinterpreted the allegation that Dr Udoye had not practised as a GP and that the Tribunal had not given proper consideration to whether an adverse inference should be drawn from Dr Udoye’s decision not to give evidence.

Mr Justice Holgate held that the Tribunal had erred in adding the word “independent” into the allegation that Dr Udoye had practised as a GP, there was no justification for adding this word and that the language of the allegation was “perfectly straightforward and clear”.

It is set out that the GMC’s position regarding the meaning of the charge was made clear in writing, in response to a submission of no case to answer, with that response being adopted in closing submissions. Mr Justice Holgate comments that it is a pity that the Tribunal did not confirm that they had the document in question and that they had re-read the relevant passage before the hearing concluded. A pity indeed given the cost of the appeal process and the inevitable delay and costs arising from the need for a further MPTS hearing.

It was also held that the Tribunal’s reasoning was flawed in respect of the application of the principles set out in R (Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin) when considering whether or not an adverse inference should be drawn.

Kuzmin established that an adverse inference can be drawn from a registrant refusing to give evidence. It was held that whether to draw an adverse inference would be dependent upon the facts of the case but that generally, no adverse inference would be appropriate unless the following criteria are met:

i) a prima facie case to answer has been established;

ii) the individual has been given appropriate notice and an appropriate warning that, if he does not give evidence, then such an inference may be drawn; and an opportunity to explain why it would not be reasonable for him to give evidence and, if it is found that he has no reasonable explanation, an opportunity to give evidence;

iii) there is no reasonable explanation for his not giving evidence; and

iv) there are no other circumstances in the particular case which would make it unfair to draw such an inference.

It is in considering (iv) that the Tribunal went astray as they are said to have “embarked upon a full evaluation of the merits of the allegation disregarding the issue of whether an adverse inference should be drawn”.

Mr Justice Holgate held that it is plain that criterion (iv) is only concerned with procedural unfairness (with all of the Kuzmin criteria being rooted in principles of fairness) and that a Tribunal should not examine all of the evidence for or against the allegation to decide whether the criterion has been met.

Should it be established that the criteria set out in Kuzmin are met, the Tribunal should go on to consider whether it is appropriate to draw an adverse inference and can at that stage take into account important public interest considerations. Should an adverse inference be drawn, that is one factor to be taken into account when deciding whether the allegation is proved. A decision should be made as to how much weight is to be given to the adverse inference, with it being possible that no significant weight will be given. When considering the weight to be attached, a Tribunal should consider the impact of there being no opportunity to test the credibility of the registrant’s evidence or the merits of any innocent explanation that has been put forward by way of submissions alone.

Mr Justice Holgate held that in view of equal weight having been given by the Tribunal to all other matters for and against the allegation, the issue of whether an adverse inference should be drawn and how much weight should be given to it was “obviously material” and that the Tribunal’s reasoning, in disregarding that process, was legally flawed.

In conclusion, it seems that the Tribunal strayed into interpreting and adding to the allegations when there was no need to do so. Further, faced with a possible dishonest or innocent explanation and without the benefit of the registrant giving evidence, the Tribunal failed to follow the careful, staged approach that is required when a registrant declines to give evidence. A Tribunal must consider procedural fairness at the outset then decide whether to draw an adverse inference before assessing the evidence and whether or not an allegation is proved. Conflating these processes will only lead to trouble and potentially a fresh hearing before another Tribunal.  


Laura Smith, Associate, BLM
laura.smith@blmlaw.com

Covid-19 public inquiry –focusing on health and care

Whilst addressing the House of Commons on Wednesday 12 May 2021, Prime Minister Boris Johnson told MPs that an independent statutory public inquiry into the handling of the pandemic would be convened in spring of 2022.

What is a public inquiry?

Statutory public inquiries are formal investigations initiated by a government minister that is capable of being granted special powers to compel testimony and the release of other forms of evidence. They are called due to the existence of public concern due to a set of events. In the past, inquiries have addressed topics as wide-ranging as transport accidents, fires, the mismanagement of pension funds, self-inflicted deaths in custody, outbreaks of disease, and decision-making that has led to war.

Non-statutory inquiries lack the subpoena powers and ability to take evidence under oath that are afforded to statutory inquiries.

The Inquiries Act 2005 was designed and passed to provide a framework under which future inquiries can effectively be operated and conducted to deliver valuable and practicable recommendations in a timely and cost effective manner.

The main function of statutory inquiries is to address three key questions:

  1. What happened?
  2. Why did it happen and who is to blame?
  3. What can be done to prevent this happening again?
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Social care reform, deaths in care and the pandemic

The Queen’s speech was delivered to both Houses of Parliament on 11 May 2021 with a focus upon protecting the health of the nation and economic growth. Criticism has been made however, of the lack of a concrete commitment to address the long-standing funding issues that have plagued the care sector with a brief mention only made within the speech that “proposals on social care reform will be brought forward”.  This appears to follow a lack of agreement between No 10 and the Treasury regarding a strategy to limit the amounts pensioners have to pay towards their own care. 

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Care home visits: where do you stand?

From 12 April 2021 new guidance was brought in by the Government on care home visiting. It applies to care homes for working age and for older adults in England.

Every care home resident can nominate up to two named visitors who can enter for regular visits and those visitors are to be subject to rapid lateral flow testing before each visit. The visitors are also required to wear PPE and follow infection control measures whilst in the home. Physical contact is to be kept to a minimum.

Whilst this guidance is a change from the guidance in place prior to 12 April 2021, the Joint Committee on Human Rights (JCHR) questioned whether the care homes regulator, the Care Quality Commission has sufficient awareness of compliance with visiting guidance and, in fact, has gone as far as suggesting that the CQC has had an ‘astonishing’ lack of awareness on compliance following the JCHR’s own investigations into compliance.

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