COVID-19 & The Bar: Do barristers have to go to court?
Kathryn Sheridan
Amid the current COVID-19 pandemic, we recognise that there is a great deal of anxiety and uncertainty amongst those working within the healthcare sector. Regulatory bodies in the UK have responded to this by publishing advice and guidance for practitioners on their registers.
In this blog, we look at the position as it stands for doctors, with the intention of providing some reassurance in these difficult times. This is obviously an evolving situation and regulators will undoubtedly review and update their advice in line with the UK government’s guidance as that inevitably continues to change.
On 3 March 2020, the General Medical Council (GMC), together with the other health and care regulators released a joint statement outlining their approach to regulation in light of COVID-19. The full statement can be accessed here.
Importantly, the statement recognises that “professionals may need to depart from established procedures in order to care for patients and people using health and social care services...” and reassures that “our regulatory standards are designed to be flexible and to provide a framework for decision-making in a wide range of situations”.
The key points are as follows:
- Practitioners are encouraged to use their professional judgement to assess the risk in delivering safe care, informed by any relevant guidance and the values and principles set out therein (i.e. Good Medical Practice).
- Due to the highly challenging circumstances, it is recognised that practitioners may need to depart from established procedures in order to care for patients.
- Where a concern is raised to the GMC, it will be considered on its own facts, taking into account the factors relevant to the environment in which the doctor was working. This will include any relevant information about resources, guidelines or protocols in place at the time.
In addition to the joint statement, the GMC has published specific guidance for doctors on its website, from which the following key points emerge:
- Doctors should continue to follow the ethical guidance as far as practical in the circumstances. The GMC’s website helpfully streamlines the guidance into 11 categories which include matters such as confidentiality and care at the end of life.
- On 11 March 2020, the UK’s Chief Medical Officers and NHS England’s National Medical Director released a joint statement outlining how they intend to support doctors. That statement has been subsequently updated (most recently on 20 March) and will no doubt continue to get updated. As such, it is vital that doctors continue to check to ensure that they are practising in accordance with the current advice. In essence, the updated statement is consistent with and reiterates the advice provided by the statutory regulators. It also makes clear that the GMC, together with the UK’s education bodies, is working to ensure that the long-term prospects of doctors in training are not compromised.
- There is recognition that the pressure on services may result in doctors working outside their usual practices or in unfamiliar surroundings. The advice is that, when making difficult decisions about the safest and best course of action at any given time, doctors should consider factors including:
- What is within their knowledge and skills;
- What support other members of the healthcare team can offer;
- What will be best for the individual patient given the available options;
- The protection and needs of all patients they have a responsibility towards; and
- Minimising the risk of transmission and protecting their own health.
Evidently, given the risk of infection, the guidance also helpfully covers what doctors should do if they know or suspect they are infected, which includes self-isolating.
Retired and/or left practice – returning to the front line?
The COVID-19 outbreak is new territory and it has meant that frontline staff are tremendously stretched. To assist, the government is expected to ask the GMC to give temporary registration to 15,000 doctors who left the register or gave up their licence to practise in the last 3 years. A guide to which can be accessed here.
The key factors you need to be aware of are as follows:
- The process is in accordance with section 18a of the Medical Act 1983 which allows the Secretary of State to grant ‘temporary registration with regard to emergencies involving loss of human life or human illness’;
- If you've been contacted, you are permitted to opt-out;
- The doctors who can be considered must be considered by the Registrar to be ‘fit, proper and suitably experienced’;
- You will have a contract that reflects all the working hour protections, pay arrangements, annual leave entitlement and inductions that are provided to new FY1 doctors;
- If you have retired, the government is bringing forward emergency legislation which will assist doctors not to fall foul of the 16-hour rule which currently prevents staff who return to work after retirement from the 1995 NHS Pension Scheme;
- If you are engaged by an NHS trust to provide NHS services, you will be covered by the Clinical Negligence Scheme for Trusts. If you are engaged by a GP practice to provide NHS services, you will be covered by the Clinical Negligence Scheme for General Practice. Please note, the arrangements are specific to NHS services, not private practice;
- Aside from aforementioned, medical defense organisations are issuing information and therefore you are best placed to check with yours as to your personal position. As an example, the Medical Protection Society confirmed that it will offer no cost professional indemnity protection to non-practicing or retired doctors who return to work during this pandemic; and
- You will not be expected to revalidate whilst you hold temporary registration.
These are unprecedented times, and therefore you may be faced with dilemmas which are new to you. It is clear the GMC and other regulatory bodies are committed to transparency during this outbreak, and that their ultimate priority is the protection of life. Nonetheless, you will remain accountable for the decisions you make, and must be able to evidence your decision-making in the same way you would otherwise do outside of such a crisis. This means that your clinical records will need to be clear and robust. Further, internal processes such as incident reporting should be used where you are sufficiently concerned about issues which arise.
The GMC has committed to regularly updating its advice for doctors as the situation develops, but should you be concerned about your professional practice, please do not hesitate to get in touch.
About the author
Shannett Thompson is a Senior Associate in the Regulatory team. She is a highly experienced lawyer taking the lead in defending health professionals before their regulatory bodies including the GMC. She has substantial experience in advising individuals in relation to their regulatory obligations in the wider context.
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