10 legal issues arising from COVID-19 for private practitioners

First published in Independent Practitioner Today in June 2020

Every sector of the economy in the UK and abroad is facing unprecedented challenges arising out of the current Covid-19 pandemic; the private healthcare sector is no exception. We have considered some of the legal issues that you may be facing in the current climate and how you might be able to respond to them.

Patients

1. Treatment

We are aware that many private healthcare providers are currently dedicating resources to the NHS and have suspended many planned non-urgent treatments to private patients where considered clinically appropriate. They are also restricting access to visitors to try to limit the potential risk of spread of Covid-19 on their sites. If you are taking such measures, you will need to ensure that you are communicating with your patients and staff about them, and where operations or courses of treatment are being suspended you will need to consider the financial impact of that (e.g. where refunding treatments). Any changes/delays in treatment should be with the patient’s knowledge and where appropriate, consent, taking into account the material risks of any such change/delay.

2. Video Conferencing

Due to the advancement in technology many practitioners and patients are taking advantage of other methods of holding appointments besides face to face consultations. Video conferencing is one of the most popular non face to face consultation methods which has developed over recent years and there are many platforms which practices can use to do this.  The appropriateness of an examination by video conference will need to be considered on a case by case basis. The key things that CQC have highlighted as an area of concern for online clinics is for practitioners and especially prescribers to ensure, is that you verify the details of the patient you are speaking to and obtain their informed consent to the remote consultation method. Patient confidentiality remains of paramount importance, and although the sharing of patient records may be required as part of the covid-19 response, you should still consider very carefully what data you are sharing and how you are sharing it. You will also need to pay attention to any new IT equipment security and protections to ensure patient confidentiality.

Employment

3. Staffing

Employers should be taking any appropriate measures to protect your staff, following the guidance on infection control and having appropriate PPE where required.

Where you employ staff and cannot maintain your workforce because of the effect of Covid-19, then you can furlough employees and apply for a grant to cover 80% of their usual monthly wage costs. There is a cap on the amount of the grant which is £2,500 per month plus associated NI and pension contributions. It is only a temporary scheme, originally in place for 4 months starting from 1^st March 2020, which will continue in its current from until the end of July.  A variation of the scheme will run from August through to October.

4. Self-employees

Akin to the position for employees, the government will also provide grants equal to 80% of the average profits earned by a self-employed person from the tax years 16/17, 17/18 and 18/19 – capped at £7,500 altogether. This is only available for those with trading profits of less than £50,000 per year.

Contracts

5. Contract Delivery

For those of you with contractual arrangements in place, your suppliers may be finding it difficult to carry out their contractual obligations due to the impact of Covid-19. If you are in that position, then you may find that discussions are the most pragmatic way of resolving any issues and you could vary your contracts or enter into standstill agreements. If matters cannot be resolved by consent, you should consider the specific wording of any contracts and you may consider seeking to terminate the arrangements in place in line with the contractual provisions.

6. Signing of contracts

Even during the pandemic, you may still need to sign documentation on behalf of your business. This can prove difficult with the social distancing and isolation rules in place.  Electronic signatures are certainly a way in which some documents can be signed. Although, it is still necessary to get wet ink signatures on certain documents, such as leases, property transfer deeds and Wills.

Some documents have to be signed in the presence of a witness e.g. Deeds and Leases.  A witness has to be physically present when the deed is signed. There have been some inventive ways of witnessing which have still complied with the social distancing and isolation rules – including witnessing through a window, with the document then being safely passed through for the witness to sign.

Property and Insurance

7. Eviction

For those of you that lease your premises, you will be protected from eviction up until 30 June 2020 (as at the time of writing) if you cannot pay your rent because of Covid-19.  You should be aware that this is not a rental holiday, and you therefore remain liable for the rent. If you are a landlord of a premises, then you should be careful when liaising with any tenants about this as there is always a risk of inadvertently waiving payment of rents, rather than delaying them.

8. Buildings insurance

If your business premises are currently closed as a result of Covid-19, then you should check your insurance policy for any specific requirements that might apply to premises that are left empty.

9. Building Interruption insurance

You may have insurance in place to cover business interruption. Whether or not you can claim in this pandemic will depend on the specific wording of your policy. The majority of cover for business interruption is traditionally associated with damage to property, rather than disruption by, for example, notifiable diseases. However, in every case, the specific wording of the risks covered need to be considered to see if a claim is viable for lost income or increase expenditure in this period.

Personal

10. Wills

Half of the adult population dies intestate. Yet a will is one of the most important documents you will ever write. A sad reality of the potential effects of the current pandemic on the general public but also specifically patients and practitioners, is that solicitors acting in the execution of will are recognised as key workers in this crisis. Hempsons have written previously in this publication on the importance of having wills in place in ordinary times. This is particularly relevant to private practitioners who need to carefully consider the impact of their financial affairs throughout their professional lives and into retirement, keeping their will under periodic review.