Blog
Coronavirus Act: updated considerations for healthcare professionals
Christina Orthodoxou
In this blog we consider the current guidance for doctors issued by the General Medical Council (GMC) and how doctors can deliver the best possible patient care within the confines of this guidance. In particular, we look at the judgement that needs to be brought to bear by doctors on the difficult decision of whether or not a face to face appointment is clinically required.
The General Medical Council’s (GMC) standard flowchart for remote consultations sets out a number of key criteria to consider when weighing up whether a remote consultation might be appropriate for any particular patient. Doctors must consider whether:
It follows that if any of the reverse of the above criteria hold true, it is unlikely that a remote consultation would ordinarily be appropriate. However, in the current circumstances, there can be no doubt that the scenarios in which remote consultations might now be used are bound to increase, by necessity. The question then is, how should a registered medical practitioner more broadly use remote practice in a safe way, consistent with their duty to patients?
The GMC has sought to address the need for a different approach during the pandemic, in an FAQ document contained within their COVID-19 guidance pages, which references the normal remote guidance flowchart. The GMC notes, within this document, that “[d]uring the pandemic, we recognise that doctors may need to depart from this advice and apply their professional judgement to make best use of the resources available to them.”
Exercising this judgement effectively will, to an extent, depend on the means of remote consultation. The current NHS guidance is that primary care practices should adopt a ‘triage first’ model, where telephone calls are used in the first instance to determine what might be appropriate as a next step.
Such telephone consultations of course have their limitations. The clinician cannot see the patient; cannot observe physical symptoms; cannot see how a patient reacts to questioning; and cannot therefore usually make a complete and informed assessment of the presenting complaint. There can be no doubt that for routine checks they will serve as an expedient means of checking-in with a patient, but it will be rare that they provide the practitioner with sufficient information to make considered clinical decisions.
The clinician will then have to make a decision. Is the presenting complaint something which can reasonably be dealt with by another means, perhaps video consultation, or will it require a face-to-face consultation with additional measures in place to ensure patient and clinician are both safe? Indeed, the GMC guidance notes that “[r]ecent NHS guidance across the UK advises that patients should be enabled to get advice and care without attending a GP practice unless in-person care is clinically required.”
Video consultations allow practitioners to interact with patients in a way that is arguably fully consistent with a doctor’s professional obligations and indeed with best clinical practice. The current situation, unlike the ordinary position in respect of remote consultations, will require clinicians to establish whether they are able to conduct relevant examinations in respect of the particular presenting complaint.
Using suitable, secure video conferencing software, doctors can request patients to show them physical symptoms (within reason) and can properly assess a patient’s demeanour and whether concerns are symptomatic or not. Of course, there are still limits. There may be difficulties with patient consent in displaying sensitive complaints, and some conditions (for example ENT concerns) are unlikely to be diagnosed under poor lighting and without the clinician being able to examine within the ear, nose or throat.
Matters will also be more complex in instances where the clinician has limited access to clinical records (which may even be in another language in the case of foreign nationals locked down here) and in situations where presenting complaints require prescription of opiates or other medications subject to abuse. In such circumstances, the GMC recommends that practitioners consider signposting patients to their online treatment guidance for patients. In such situations, the clinician is likely going to have to default back to a face-to-face appointment. There is, of course, nothing to stop a practitioner from attempting to resolve the concern by video consultation in the first instance, and then reverting to a consultation in person if faced with an insurmountable concern.
The key, according to the GMC guidance, is whether face-to-face consultation is “clinically required”. This is of course key in terms of preventing the potential further spread of COVID-19, but as highlighted above, may not be a straightforward decision, but it is one which rests solely with the practitioner, informed by any local or national guidance issued to them.
There are likely to be both practitioners and patients for whom video consultations will prove a new and challenging experience. The NHS has acknowledged that there has been a need to implement remote consultations at a rate than is quicker than was previously considered. The NHS guidance document referred to above contains helpful suggestions and recommendations, including a list of recommended software which better caters for medical professionals.
Remote platforms inevitably have a bearing on the obtaining of patient consent. As a general rule, consent is likely to be implied where patients agree to and engage with video consultations. As highlighted above, there may be circumstances where a patient may disengage when they become concerned about having to discuss or display private concerns. It is hard to know what situations might arise, but clinicians will have to be more keenly aware of consent issues than ever before. For example, it may be that you decide to ask patients to fill in a questionnaire ahead of any remote consultation which provides detail on the presenting complaint and provides them with an opportunity to give prima facie consent which can be confirmed during the remote consultation.
Cases where there may ordinarily be a chaperone also present challenges. The GMC have existing guidance for chaperones, but clinicians will have to reflect on whether it is possible to conduct these appointments remotely and exercise their judgement on whether such appointments may need to remain as face-to-face appointments. For example, a child can be accompanied by a parent even remotely.
Finally, as with so many of the decisions which this current pandemic is forcing clinicians to make, the central protection from any future criticism is likely to be record keeping.
The GMC’s guidance in their joint statement with other regulators states clearly that “[c]oncerns about registered professionals will always be considered on the specific facts of the case. This includes taking into account the situation in which the professional is working and any protocols in place at the time. The scale of the challenges to delivering safe care would also be relevant to a question about the clinical care provided by a doctor.”
In considering these criteria at the point a complaint is made, there can be no doubt that proper coding and detailed free-text notes setting out clinical decisions are likely to be central if a complaint is made. These, it would seem, ought to include notes about the appropriateness of a particular method of consultation, what was done during the remote consultation and also whether the clinician has satisfied themselves regarding those areas of risk which are exacerbated by the absence of a face-to-face appointment.
These are of course uncertain times. Your professional judgement is crucial in respect of whether a remote consultation is appropriate in each case. Ensure you have recorded your thought process and clinical reasoning. If in doubt, and as the position is changing so frequently, refer back to the guidance.
Julie Norris is a Partner in the Regulatory department and specialises in advising in the health, professional services, legal and financial fields.
Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act. Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty. Conducted badly they can be an expensive mistake with far reaching consequences.
In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions. In this blog we look at whether having an ulterior motive in starting a private prosecution can lead to problems down the line.
Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act. Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty. Conducted badly they can be an expensive mistake with far reaching consequences.
In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions. In this blog we look at whether the private prosecutor is entitled to recover their full investigation and legal fees at the end of the case.
Every solicitor knows that an undertaking is serious stuff. Arguably it is the greatest power available to a solicitor. A promise, if broken, that will lead to immediate and serious consequences for the giver. As such it can be relied upon to the ends of the earth. The power of undertakings has meant that they sit at the heart of every property transaction, bridging the time gap between the sending of money and the receiving of title. They are also used in other areas of commercial life and as part of litigation. The “brand” of a solicitor’s undertaking is so powerful that little thought is given as to where their power comes from.
This week, the Government announced that Covid-19 vaccinations will be made compulsory for care home staff, raising strong emotions on both sides of the argument.
We previously wrote on the decision in Haris, in which the High Court considered and gave clarity on how professional regulators should consider wording allegations of a sexual nature.
In upholding the substantive decision of the High Court, the Court of Appeal (the Court) judgment in Haris v General Medical Council [2021] EWCA Civ 763 delivered this month (May 2021), adds further commentary on the wording of such allegations in disciplinary proceedings.
Gone are the days of computer gaming being viewed as a secluded activity; gaming is now a thoroughly social experience that attracts a global audience of millions and players can compete for large sums of money and celebrity. This burgeoning industry is largely in a virtual world and has developed in a blockchain, decentralised fashion. Often the UK government talks up the UK gaming industry and how keen the government is to support this sector, and there have been instances that show support, but when it comes to playing games competitively, law and regulations have not yet caught up.
R (on the application of Young) v General Medical Council [2021] EWHC 534 (Admin).
The material issue in this case was whether a second assistant registrar of the GMC (“AR2”) was right to decide that allegations should proceed, despite a decision previously made by an assistant registrar (“AR1”) that allegations should not proceed.
The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”. If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed. In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.
In this 3-part tech blog series, we’ve explored how legal and accountancy regulators are driving and responding to changes in technology and innovation in their respective professions. We’ve also considered the commercial perspective, looking at interesting developments in these sectors , particularly around the use of artificial intelligence (AI).
In this second blog in our technology and innovation series, we look at some recent developments in the use of artificial intelligence (AI) in the legal and accountancy sectors.
On 18 November 2020, the government confirmed that it is proceeding with planned changes to the Victims' Code, following a consultation that began on 5 March 2020. The changes mean that when the revised Code comes into force, it will be based on a clearly defined set of rights that set out a minimum level of service that can be expected from criminal justice agencies. It is hoped that the changes will mean victims have a greater awareness of their rights, receive the information and support when then need it and have a greater level of satisfaction with the treatment they receive in the criminal justice system.
On 19 November 2020, the High Court handed down judgment in the Professional Standards Authority for Health and Social Care’s (“PSA”) challenge to a decision of the Medical Practitioners Tribunal (“MPT”) to suspend a doctor from practice. In her judgment, Mrs Justice Farbey emphasises the significance of lack of insight to the question of sanction.
All providers registered with the Care Quality Commission (“CQC) must assure themselves that all directors who are responsible for delivering care to service users are fit and proper – in other words, they must be able to diligently carry out their responsibility to ensure the quality and safety of care. This forms part of the providers’ duty to ensure the service is well-led, which is one of the focus points during an inspection. Not only does the CQC monitor compliance at the point of registration, but it is an on-going duty and can lead to enforcement action where it is not met.
The House of Commons Justice Committee has made a series of recommendations in its report published today which are likely to have a significant impact on the future of private prosecutions in England and Wales.
Although everyone hopes the now much enhanced critical care capacity in the UK will meet the demand from patients, there is a growing concern that the time will come during the COVID-19 pandemic when the NHS will be overwhelmed and the need for lifesaving interventions will exceed available resources.
The Charities Commission has recently warned that fraudsters are exploiting the spread of coronavirus (COVID-19) in order to carry out fraud and cybercrime against charities. Unfortunately, in our experience, the likelihood of the police taking action against these individuals is low. In the current climate it is easy to understand why the use of private prosecutions is firmly on the rise. In the past, some charities have been criticised for having an overzealous approach to the conduct of their private prosecutions. In this blog, we highlight the importance of taking a few simple steps to ensure that charities who conduct private prosecutions are beyond reproach.
With BBC reports that there have been 178,000 incidents of anti-social behaviour in the last four weeks across England and Wales alone, if a solicitor receives a fixed penalty notice for a non-essential journey away from home - do they have to inform the SRA?
With the COVID-19 lockdown extended in the UK until at least early-May, primary care practitioners and consultants, who have been increasingly turning to remote consultations or telemedicine to treat their patients, will inevitably see an increase in their use to address more complex medical issues.
In our previous blog, we discussed the introduction of the Coronavirus Act and how the emergency legislation impacts healthcare professionals. Understandably however, the situation is constantly evolving and the position must be regularly reassessed. With this in mind, we discuss below some of the recent, key updates impacting the healthcare workforce.
Last week we provided you with detail on the guidance to be aware of as a manager or owner of a care/domiciliary home in light of the current pandemic. The guidance is of course changing given the nature of the outbreak, so please read on for the key updates:
We recognise that these unique times are presenting unprecedented challenges for our clients and we are here to support you in any way we can.
Click to viewAlex Torpey covers the key things to look out for if you are relying on the Force Majeure clause.
Watch the video on LinkedInRachel Freeman, Partner in our Family Law team, addresses some issues that we are seeing arise for separated parents in the current crisis.
Read the blogAndrew Solomon speaks about the challenge for tech companies and coworking spaces during the current COVID-19 pandemic.
Listen to the podcastAlun Milford, Partner in our Criminal Litigation team, provides an in-depth look at the legal basis behind the current lockdown.
Read the blogOn Friday 3 April, immigration partner and head of department, Nick Rollason, hosted a webinar looking at urgent issues employers are facing during the COVID-19 crisis and answered some of the key questions being raised.
Watch the webinar recordingOn Thursday 9 April, Andreas White, Partner in our Employment Law Team, delivered an overview of the scheme with a focus of the key legal issues for UK employers.
Watch the webinar recordingWill instructions have apparently risen by 30% since COVID-19 reached our shores. What effect does COVID-19 have on Will signings? James Ward and Diva Shah in our Private Client team blog.
Read the blogCharlotte Bradley, Head of our Family Law Team, reflects on how the COVID-19 crisis has affected working parents like her.
Read the blogCalls for a public inquiry are continuing to mount and are likely to prove difficult to resist. In this blog, Sophie Kemp considers the framework for such inquiries, and the key issues likely to form the core of its terms of reference.
Read the blogWe welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Christina Orthodoxou
Christina Orthodoxou
Shannett Thompson
Skip to content Home About Us Insights Services Contact Accessibility
Share insightLinkedIn Twitter Facebook Email to a friend Print