COVID-19 EXPERT LEGAL INSIGHTS

Healthcare regulation FAQs
for frontline health and social care staff

Last updated: 2 April 2020

Below we answer some of the FAQs that have been posed to us by frontline health and social care staff during the COVID-19 pandemic.

Temporary Registration
 

Can I join a temporary register if I have previous fitness to practise findings against me?

In its guidance on the Covid-19 temporary register, the NMC has made clear that:

We will not consider people who were removed from the permanent register either through our fitness to practise processes or who lapsed with outstanding fitness to practise concerns as fit, proper and suitably experienced.”

The NHS guidance to doctors has made clear that:

GMC emergency powers allow them to give temporary registration to certain groups of doctors as part of the response to the pandemic. Doctors who have an open FTP investigation or an FTP sanction on their registration are not included in the group for temporary registration.”

Whilst SWE has not addressed this question explicitly, we expect the same approach to be taken.

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Will I have to pay a registration fee?

No, the regulators have made clear that no registration fees will be payable for registrants temporarily returning to the register. 

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Will I need a DBS certificate?

Yes, if you are an NMC/GMC-regulated individual, but you will not be required to pay for a DBS check.

Those joining the temporary registers will not be exempted from the requirement of having an up-to-date DBS certificate. However, for those with a recent DBS Certificate or who maintain a subscription to the DBS Update Service, it may not be necessary for a further application to be made.  Assessments, and the need for further checks, will be the responsibility of your employing organisation.

Where a new DBS application is required, DBS are extending the scope of their services to include a new fast track check. These arrangements have not yet come to fruition, but shall enable employers to recruit into a regulated activity before receiving full disclosure certificates, where they have undertaken a risk assessment and put in place appropriate monitoring.

SWE has not clarified the position for social workers. Social workers should assume that an up-to-date DBS certificate is required.

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My CPD is out-of date, will I have to update and/or maintain it?

The regulators have issued specific guidance on this point. You will not be required to demonstrate up-to-date CPD.

The NMC, in its FAQs on the Covid-19 temporary register, has made clear that nursing and midwifery professionals who left the register in the preceding three years won’t need to have practised for a minimum number of hours in the last three years.

NHS guidance for doctors echoes this, and highlights that fast-track induction processes are being developed locally. These will include the refreshing of skills, such as death certification and prescribing, as well as new skills such as Personal Protective Equipment (PPE) training. If you are a GP, the provider or the practice where you are deployed will be responsible for providing you with the necessary induction.

The GMC has made clear that temporary registrants will not have to participate in revalidation during their temporary registration. The NMC also makes clear that revalidation requirements will not apply to temporary registrants.

SWE’s guidance suggests that temporary registrants will not need to meet Standard 4, which focuses on CPD.

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I have recently retired. What impact will resuming employment have on my pension?

The regulators are alive to this question.
 
The NHS has issued specific commentary, stating that the government is bringing forward emergency legislation in response to the COVID-19 outbreak that contains important information on pension arrangements for extra NHS staff. It provides for the suspension of the 16-hour rule which currently prevents staff who return to work after retirement from the 1995 NHS Pension Scheme from working more than 16 hours per week, in the first four weeks after retirement. It also provides for:
  • the suspension of both the abatement for special class status holders in the 1995 Scheme; and
  • the requirement for staff in the 2008 Section and 2015 NHS Pension Scheme to reduce their pensionable pay by 10% if they elect to ‘draw down’ a portion of their benefits and continue working.
These measures will allow staff who have recently retired from the NHS to return to work without having their pension benefits suspended.
SWE has not clarified the position for social workers but given that the Government guidance for social care workers acknowledges that local authorities will each take their own approach, it is likely that further guidance on this point will be circulated as and when required by relevant local authorities.

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What if I change my mind?

The NMC has made clear that those who decide to join the Covid-19 temporary register can change their mind at any time and inform them that they wish to opt out.

The GMC has clarified that doctors can change their mind at any time by emailing the GMC at response@gmc-uk.org or calling the GMC on 0161 923 6602.

SWE has clarified that returning social workers are not in any way obligated to return to social work practice if they do not want to, and further, can opt out at any time.

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How long will my temporary registration last/when will my temporary registration expire?

The guidance issued by the NMC, GMC and SWE suggests that temporary registrants’ registration shall end on the soonest of the following events:
  • when the Covid-19 temporary register ceases because the Secretary of State for Health and Social Care advises us that the emergency situation no longer exists;
  • if at any time you decide to opt out of the temporary register; or
  • if the Registrar decides to remove your name from the temporary register during this time.
To continue to practice after the expiration of your temporary registration, you would need to re-join the register permanently.

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Once registered
 

Is the regulatory position changing to reflect increased pressures on services?

A joint statement from a number of healthcare regulators was published widely on 3 March 2020. A significant number of regulators including the GMC, NMC and SWE are signatories to it.
Of particular note is the below paragraph –

We recognise that in highly challenging circumstances, professionals may need to depart from established procedures in order to care for patients and people using health and social care services. Our regulatory standards are designed to be flexible and to provide a framework for decision-making in a wide range of situations. They support professionals by highlighting the key principles which should be followed, including the need to work cooperatively with colleagues to keep people safe, to practise in line with the best available evidence, to recognise and work within the limits of their competence, and to have appropriate indemnity arrangements relevant to their practice.”

The statement goes on to say that any matter will of course be considered in context, and this factor will doubtless be central to matters which may be referred during this on-going crisis.

The GMC’s additional guidance on this joint statement goes on to say “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.”

The NMC draws out three specific standards and behaviours from the Code which they note may have particular significance. These are:

  • Acting in the best interests of people at all times within the limits of your knowledge and competence.
  • Keeping to and promoting recommended practice and guidance in relation to controlling and preventing infection.
  • As well as your own safety, taking account of the safety of others and the availability of other options for providing care.

    The Government document being relied upon by SWE states (prior to setting out its core principles) that, “[w]here resources are constrained and there are surges in demand, it may not be feasible to consider all the principles or the actions below them. Each principle must be considered to the extent possible in the context of each circumstance with appropriate risk management and considerations of individual wellbeing, overall public good and available information and resources.

    In short then, yes, regulators have acknowledged the inevitable pressures placed on all health and social care workers during the current circumstances. It is clear that all are adamant that standards should remain high universally, but as always it is safe practice and public protection which remain key.

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What if I am asked to practise outside of my ordinary area of clinic practice?

The NMC and GMC have issued specific guidance on this point, with the GMC setting out five factors which it suggests are a good starting point to consider:

  1. Consider what is within your knowledge and skills, and how your existing skills could be used in a different healthcare setting;
  2. Identify what skills and experience other members of the healthcare team could offer;
  3. Be willing to seek professional advice and clinical supervision from colleagues. This may come from a senior, peer or a more junior colleague who is acting within their usual clinical setting or scope of practice;
  4. Seek additional training and guidance as far as you reasonably can in the circumstances. This can include preparing for work in a new setting by accessing online or local training to help improve your knowledge and skills in advance; and

Make sure you know who go to for support and professional advice.

Notably, the GMC’s revised guidance states in its preamble about practising outside your ordinary area that “in these exceptional circumstances, doctors at every level may be required to work at the limits of their comfort zone and in some cases beyond."

The NMC’s guidance is similar, noting that the code is flexible and stating – “[i]n-line with the Code, use your professional judgment, working with other colleagues across all disciplines to assess risk, find the best way to provide care for people while recognising and working within the limits of your competence.”

The answer here is that with circumstances changing daily and with it currently being unclear how many staff are likely to be asked to act outside their ordinary areas of practice, the guidance has been deliberately left broad. It is clear though, that in line with the general guidance being published, practitioners ought not to act if they do not feel confident to practice in a safe way.

As set out earlier, the Government guidance adopted by SWE is intentionally light-touch and intended to cover a broad range of community care practitioners in numerous fields. As a result it does not touch on this in significant detail: “[s]ocial care is a locally led and delivered service built on a detailed understanding of individuals and their families, communities and cultures. Social workers, occupational therapists and nurses form the core professional group and have clear responsibilities and accountabilities to their own professional codes and guidelines.”

All regulators are referring practitioners back to core competencies and reinforcing that the central themes are patient safety and clinical competence. Central to each is a clear dialogue with others to ensure that support is available.

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What is the position in relation to supervision?

There is surprisingly little commentary from regulators on the issue of supervision at this stage. Supervision will necessarily vary depending upon the circumstances and setting, however, temporary registrants must remain vigilant to only operate within the limits of their experience and should be open and honest where that experience is aged, or where they are asked to practice outside of their competence.

The NHS has suggested that temporary registrants will be contacted and if willing and able to return to registered practice “a bespoke package of support will be agreed to enable return to work safely. This will include: DBS and identity checks which will be undertaken remotely and quickly; a fast track induction including all key mandatory training requirements to ensure you are supported to practise safely; and more specific guidance, for example, on scope of  practice, management of coronavirus and use of Personal Protective Equipment (PPE)”

The guidance also suggests that temporary registrants will not be subject to appraisal processes.

The NHS guidance to doctors suggests that you will receive a fast track induction that will cover key mandatory training requirements, as well as more specific guidance, for example, on the management of coronavirus. Some of this would be led by NHS employers. There would also be ward/departmental level induction. If you are a GP, the provider or practice where you are deployed will be responsible for providing you with the necessary induction and clinical supervision, dependent on your individual requirements.

SWE has clarified that it will not be making any safe and effective practice checks: it will be the employer’s responsibility to ensure that anyone with a temporary registration returning to social work can evidence safe and effective practice.

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Practising Concerns
 

Will I be insured?

The NMC advises temporary registrants to speak to their temporary employer about what arrangements will be in place for indemnity cover and assures temporary registrants that the Government is ensuring that protections will be in place for those who take part in work as part of the Covid-19 response.

NHS central guidance suggests that “arrangements are already in place to indemnify any professional working in a hospital trust or GP practice. For other places of work you will be able to discuss the options available to you at the point of deployment.”

NHS guidance to doctors has clarified that, if engaged by an NHS trust to provide NHS services, individuals will be covered by the Clinical Negligence Scheme for Trusts (CNST). If engaged by a GP practice to provide NHS services, individuals will be covered by the Clinical Negligence Scheme for General Practice. It is envisaged that where retired GPs and other clinical staff are brought back to help in delivering NHS services for the purposes of dealing with the coronavirus outbreak that:

  • They will be covered under the CNST if they are engaged by an NHS trust to provide the NHS services (irrespective of where the services are provided – in hospital, a clinic or on GP premises), or
  • They will be covered by the CNSGP if they are engaged by a GP practice or Part 4 contractor to provide NHS services that are either:
    • Primary medical services (provided under a GP contract [Part 4 NHS Services Act 2006] – GMS/PMS/APMS)
    • Another type of NHS service provided as part of the activities of the GP practice.

SWE has yet to address this question explicitly, though appears to be relying upon employers to ensure that temporary registrants are adequately insured.

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How can I continue to provide safe patient care in light of the likely increase in patient numbers?

For those in front-line medicine or social care during these uncertain times, it will doubtless be clear from the above summary that regrettably the situation will remain in flux.

The key, of course, is public safety. As the circumstances which face those practising change, there will no doubt be further guidance from the regulators and other professional bodies.

In the meantime, any professional should reflect once more on the key principles from their respective regulator and remember that regulators are aware of the trying circumstances in which practitioners find themselves. 

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What should I do if I work in front-line medicine but am symptomatic?

Current guidance is to follow government advice regarding self-isolation, even if only displaying limited symptoms. This may feel challenging, knowing that you may not have Covid-19, but cannot attend hospital to assist. The GMC is clear that those staff who are symptomatic must remain in self-isolation as advised by Public Health England (PHE). This position may change if there is increased availability of swab testing for those at work. The NMC and SWE do not currently have specific guidance on this position, but there can be no doubt that currently if symptomatic you would be wise to remain at home in self-isolation as advised by PHE.

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What if I have a pre-existing health condition?

For those with pre-existing conditions with increased risk of infection or complications, the GMC advises that there will likely need to be discussions with employers and other clinicians and that “[i]t may be appropriate to ask another suitably qualified clinician to take over the care of patients who are suspected to have or who have coronavirus.”

The NMC has similar guidance reminding registrants to discuss matters with their employer, noting: “[i]t’s also important that you’re supported to take account of your own safety and wellbeing. Your employer is there to help by managing resources effectively and dealing with risk so that that the quality of care or service you provide for people can be maintained. If you have any concerns that you believe puts you or those you are caring for at increased risk in your workplace, please share these with your manager as soon as possible”

The Government has also published generalised guidance for social care practitioners, which has been circulated through SWE. This guidance is silent on the question of on-going care in the case of specific vulnerabilities. This is unsurprising given that it is generalised advice to all services and anticipates that the localised nature of social care provision means that further guidance will be given at those levels.

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What are the regulators saying about Personal Protective Equipment (PPE)?

The NMC has little specific guidance on this, save a question by way of an FAQ regarding refusal to treat. They go on to remind practitioners of the Code’s requirement to “make sure people’s individual needs are recognised, assessed and responded to without undue delay.”

The GMC, by contrast has given significant updated guidance on this area. In the section regarding PPE, they note that any decisions should be carefully recorded and advise that the starting point should be that all staff have proper equipment. It is acknowledged that absent that ideal position there may be some factors to consider:

  • Whether treatment can be delayed, or provided differently (eg remotely);
  • Whether additional steps can be taken to minimise the risk of transmission;
  • Whether any doctors are at a higher risk from infection than other colleagues; and
  • What course of action is likely to result in the least harm in the circumstances.

It seems likely that those criteria will be central toward both employer and staff approaches whilst shortages of PPE persist. Remote treatment will doubtless be central to local GP practice, but in front-line practice, such steps are likely to be impossible.

Ultimately if work is undertaken without the proper equipment, that decision should be documented and if necessary any grievances or concerns recorded too.

In social care, the general guidance does not cover this subject, but local authorities are seemingly trying to take necessary steps. Look to your local authority and seek clarity on the policy, but it is worth noting the GMC advice above and such criteria may prove to be a helpful starting point.

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What if concerns are raised about my competency and/or fitness to practise?

The NMC has explicitly stated that competency and fitness to practise concerns raised in respect of temporary registrants would not be dealt with under the ordinary Fitness to Practise process “but where there were justifiable concerns the Registrar would have the power to remove [temporary registrants] from the temporary register.”

The GMC advises that doctors are still accountable for the decisions they make, but where a concern is raised about a registered professional, it will always be considered on the specific facts of the case. The GMC will take into account the situation in which the professional is working and any protocols in place at the time.

SWE’s guidance provides greater detail. SWE has confirmed that, upon receipt of concerns relating to a temporarily-regulated individual, it will immediately assess the nature and extent of the risk to public safety by applying the criteria in rule 3 of the Fitness to Practise Rules (the triage criteria). Once the matter has been reviewed, SWE will revoke the temporary registration of an individual, if necessary immediately removing the professional from the list of temporary social workers, meaning they will no longer be able to practise. If SWE decides not to revoke temporary registration, the professional will remain in practice until the emergency has ended and they are removed from the register, alongside the other temporary social workers.

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For more information please do not hesitate to contact a member of the regulatory team.
 

About the authors

James Lloyd is a member of Kingsley Napley’s Regulatory team and has extensive experience of advising on and presenting cases on behalf of regulators, with a particular focus on fitness to practise proceedings before panels of the Health and Care Professions Council.

Jim Olphert is an associate in the Regulatory TeamHis current practice is primarily presenting cases on behalf of regulators, with a particular focus on presenting cases against healthcare practitioners before panels of the Health and Care Professions Council.

 

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