How regulation has been impacted by the current coronavirus pandemic

First published in Independent Practitioners Today in May 2020

In the past few weeks our lives have completely changed as we knew them. The coronavirus pandemic has had affected everything – from not being able to leave your home for anything other than an essential journey or exercise, to a “national effort” to ensure that the NHS is not over-burdened. One area which has developed to keep up with this new world is that of regulation.

This article will consider what is being expected of doctors who may not have been working in the NHS before the pandemic, how regulation has been amended to provide for this unprecedented situation, and how a doctor’s fitness to practise may still be investigated.

What is being expected of doctors

There is significant demand being placed on the NHS during these challenging times and regulations have been changed in a number of ways to facilitate this.

If you currently work in private practice, it is very likely that you may have found yourself not being able to see patients face to face, hold your routine clinics, or undertake elective private procedures. You may, however, have seen an increase in referrals from NHS hospitals to treat NHS patients at your private hospital, whether it be cancer patients, women in labour or others requiring urgent surgery. It is envisaged that private hospitals are going to be utilised by the NHS into at least June 2020 to reduce the increasing waiting times for non-Covid patients and to assist in this national effort.

Doctors who recently came off the GMC’s register have found their registration being temporarily restored and revalidation has been put on hold for one year for all doctors due to revalidate before September 2020. You may have even been re-deployed to a different speciality.

The GMC has issued guidance to confirm that it is expected that doctors will “work outside their normal field of practice” during these times. In a survey of 2,000 doctors undertaken by the Royal College of Physicians in April 2020, 29% confirmed they were working in a clinical area which was different to their usual setting. Over 50% of these doctors were working on an acute medicine ward and around 14% were working on a ward specifically for Covid-19 patients.

So what does that mean for regulation?  

A joint statement was issued by the Chief Executives of statutory regulators of health and social care professionals (which included the GMC) in early March 2020 recognising that healthcare professionals may need to depart from established procedures during these times. It reminds professionals that the guidance issued by regulators provides a framework of decision making but that doctors will need to use their judgement to apply the regulatory principles to the situation.

There are a number of concerns arising and a number of things you can do to try and ensure you are protected from a regulatory perspective;

• The guidance about what is expected of a practitioner is constantly developing– you should keep fully up to date with the guidance published by the GMC, Public Health England and the CQC to ensure you are taking all appropriate and necessary steps within your own practice.
• Communicating with colleagues on key decisions and recording that decision (including who was involved and why the decision was made) is, arguably, even more important now than ever.
• The Royal College of Surgeons have released guidance advising surgeons who may be required to temporarily extend their scope of practice should ensure they receive appropriate training before extending their scope.
• If you are a doctor predominantly working in private practice who, during this crisis, is working mainly for the NHS, you should inform your indemnity provider. You should be aware that any claims arising from your work in the NHS to assist the Covid-19 crisis will be covered by the NHS Resolution Clinical Negligence Scheme for Coronavirus (CNSC);
• If you are a retired doctor whose registration has been temporarily restored, you should ensure you have appropriate indemnity cover in place either with your own indemnity provider or NHS Resolution if you are working for the NHS;

Fitness to Practise

The Medical Practitioners Tribunal Service (“MPTS”) is the tribunal service for the regulation of all registered doctors in the UK. Most substantive hearings referred to it by the GMC have been postponed from 18 March 2020 until (so far) at least September 2020. This means that medically qualified Tribunal members have been relieved of their duties to the MPTS to focus their efforts elsewhere, and expert witnesses will not be required to take time out of working on the front line provide their expert opinion for the foreseeable future. However, it is inevitable that this will cause a backlog of cases waiting to be assessed by the MPTS at the substantive hearing stage when it is considered safe for hearings to reconvene in person.

Despite the current pandemic and the postponement of many fitness to practise tribunals, the GMC and the MPTS’ overarching priority remains that of patient safety. Therefore, if serious concerns are raised about a practitioner then the MPTS will hold interim orders tribunals by way of video link.  Those with temporary registration do not escape the possibility of their fitness to practise being investigated as the GMC has also issued guidance on removing a doctor’s temporary registration when concerns are raised.

For doctors who have been sanctioned by the GMC you will need to consider whether the requirements of the current situation are compatible with your sanction. For example, are you able to comply with your conditions or undertakings imposed on your registration if you have been redeployed?

The GMC has issued guidance on when a practitioner might be able to seek early review of their sanction as well as when it might be appropriate for the review to take place on the papers (i.e. without a review hearing taking place). It suggests that any application for an early review would be decided on a case by case basis although it is suggested that a registrant is more likely to be successful in their request to vary, relax or revoke their sanction if there has been a change in circumstance preventing them from complying with their conditions or undertaking, or they are nearing the end of their sanction.

Summary

The coronavirus pandemic has had an unprecedented effect on medicine, both in the private and public sector. Private practice has seen a decrease in private patients but a vast increase in the number of NHS referrals whilst the NHS focuses its effort on Covid-19.

Many doctors working predominantly in the private sector will wish to offer their expertise in fighting Covid-19 to the NHS. Whilst the effort so far has been remarkable, and patient treatment must remain the priority, it is important to try and ensure that you protect yourself (from a regulatory perspective) throughout these challenging times.

This article does not specifically consider the health risks associated with treating patients with Covid-19 but, in saying the above, we keep in mind the extraordinary effort being made by all healthcare professionals who are working tirelessly and risking their own health (and lives) during this global crisis. For that, we wish to say, thank you.