Covid-19 – legal issues for GP practices

First published in Association of Independent Specialist Medical Accountants (AISMA) Doctor Newsline in Summer 2020 issue

There is no sector that has been unaffected by Covid-19, but general practice has faced its own unique challenges. In this article, Alison Oliver examines some of the legal issues that have arisen for practices during the Covid-19 pandemic and highlights some key points for practices to consider.

1. NHS contract amendments

Early on during the Covid-19 pandemic, regulations were passed to amend the GMS and PMS regulations and APMS directions aiming to free up capacity in general practice. These changes enable NHS England to temporarily suspend certain specific terms of GP contracts, temporarily amend the definition of “core hours” to include Good Friday, Easter Monday and bank holidays and increase the minimum number of appointments made available for 111 direct booking. Services that were suspended included new patient reviews, over-75 health checks and certain other routine patient reviews that cannot be viably conducted remotely.

The amendments to the GP contract regulations remain in place and these measures remain available to NHS England where a disease is or is anticipated as being pandemic or a serious or potentially serious risk to human health.

2. Patient services

Recent surveys by the BMA and Medical Protection Society have identified, that the medical profession is concerned that prioritising treatment of Covid-19 has had an impact on care for non-Covid-19 patients and that this could lead to an increase in claims against practitioners and providers. It is important that practices make information available to all their patients about how they can access care if they need it and that they continue to provide care to their patients on the basis of what they decide is clinically appropriate.

NHS England’s letter to practices on 4 June 2020 reiterated that patients identified as clinically extremely vulnerable (“shielding patients”) may be less likely to seek and access NHS care and outlined guidance on meeting the needs of these patients. This includes identifying a named care coordinator or point of contact, providing care at home, virtually or online where necessary, providing safe infection-controlled clinical settings where patients do need to attend in person and coordinating across primary, community, mental health and hospital care to “make every contact count”.

GP practices obviously have a key role to play in identifying and supporting shielding patients and the measures proposed in the guidance raise various legal issues for practices, many of which apply more generally as practices seek to find new ways of delivering care in a way that is safe for patients and their staff. Some of these issues (such as remote consulting and premises considerations) are explored further below.

3. Remote consultations

The Covid-19 crisis has accelerated interest in the use of technology to facilitate non-face to face consultations with patients. As well as protecting patients, remote consultations have also enabled practice medical staff to provide patient consultations from home where they are unable to attend the surgery. However, there are many potential pitfalls and risks associated with remote consultations.

Clearly it is essential that whatever platform is used it enables the practitioner to confirm that the person they are speaking to is in fact the patient and then to interact with the patient appropriately to assess their condition and their needs. They also need to obtain the client’s consent to consulting in this way – while this is implied by them accepting the appointment, it is good practice to expressly confirm and record this consent and confirm whether the consultation is being recorded. The practitioner should consider whether there are any safeguarding issues;:can these be explored fully via a remote consultation?

Confidentiality is obviously paramount. The practitioner conducting the consultation must ensure that no one can view or overhear the call without the patient’s consent. The security of the platform used for the consultation must also be considered. Most readers will have seen news of the software error that resulted in a Babylon Health patient being able to view recordings of several other patients’ video consultation (see, for example, GP Online’s article on 12 June 2020). While all possible measures should be taken to avoid data breaches, if they do occur, practices will need to report them to the Information Commissioner and inform any patients whose data has been affected.

4. Network contract directed enhanced service (Network Contract DES)

Although not directly related to Covid-19, the 2020/21 Network Contract DES Specification was published at the end of March and has been an additional matter for practices to consider during the crisis. The deadline for practices to sign up was 31 May, despite calls for this to be delayed. The new specification introduces the early cancer diagnosis, structured medication review and medicines optimisation and enhanced health in care home services alongside the existing extended hours access and social prescribing services.

Although certain obligations do not start until later in the year, there is still much for practices to do to ensure that they comply with the Network Contract DES requirements if they have signed up, including:

• submitting a workforce plan to their commissioner setting out their plans for employing additional roles under the Network DES reimbursement scheme
• considering how they will work with other providers and forming multidisciplinary teams to deliver the enhanced health in care home service
• delivering their existing extended hours access and social prescribing obligations – these have not been suspended under the GP contract pandemic measures.

There is an express obligation on primary care networks to update their network agreements to reflect updated DES requirements and practices need to be addressing these matters alongside dealing with their core work and Covid-19 response.

5. Employment

There have been many employment issues for practices to consider arising from the Covid-19 response, including:

• Ensuring that staff are, as far as possible, protected from exposure to the virus
• Making arrangements for staff who are shielding or in quarantine to work from home
• Redeploying staff into different roles either within the practice or in other parts of the NHS
• Working with retired staff who have come back to work to assist with the Covid-19 response
• Helping staff to work in different ways, such as providing remote consultations

As an employer, you are responsible for an employee’s safety at work and for ensuring that they do their work safely. It is important that practices carry out risk assessments regularly and make reasonable efforts to respond to risks that are identified. Where appropriate, those assessments should take account of the personal circumstances and vulnerabilities of individual staff members. Practices also need to ensure they have adequate insurance in case things go wrong – they should check that insurance cover is sufficient if asking staff to work in different locations or in different roles.

If staff are working in other organisations, practices should agree with those other organisations how risks and liabilities for those staff will be shared. The same applies if practices are utilising staff from other organisations.

It is important when asking staff to do different tasks and in different ways to consider whether what you are asking them to do is permitted under their employment contract: if not, you should, if at all possible, seek their agreement to such changes. While it is possible to issue a “reasonable management instruction” to enforce changes in working arrangements, this does have to be reasonable and have regard to the qualifications, skills and competencies of the staff members concerned. Practices should also provide training and support to help employees who are having to work in different ways or do different jobs from those that they are used to.

6. Premises

Practices have had to work particularly hard to adapt how their premises are used to minimise the risk of infection for patients and staff. Practices have also been working collaboratively so that different types of service can be provided from different sites, for example, with some premises being used as “hot” sites and others as “cold” and even “super-green” sites. There are various important considerations to bear in mind in relation to these matters:

• If making physical adaptations to premises, is this permitted under the practice’s lease (if applicable) and is it likely to change the assessment of rent reimbursement under the NHS premises costs directions (for example if the amount of space allocated to NHS clinical services changes)?
• If sharing premises with other providers, is there a clear basis for this? For example, how long will the arrangement go on and how will costs be shared? Ideally these arrangements should be properly documented. If practices are making premises available to others, is this permitted under the lease (if applicable)? If practices are providing services from different premises, is this permitted under their GP contract (which defines the premises from which services are provided)?
• Have the insurers of the premises been made aware of the changes? It is important that they are to avoid invalidating cover. For the same reason any consequential requirements of the insurers should be satisfied.
• Likewise, if the premises are mortgaged, the changes should be discussed with the lender to avoid breaching the terms of the mortgage.

7. Management and administrative issues

Management and decision making are more challenging in times of crisis. If practices have partners who are absent because they are self-isolating or ill, there is no reason why a meeting cannot take place with partners in different locations, but practices should check that their partnership agreement permits this. This might be a good time to review partnership decisions making arrangements to ensure that there is the flexibility to make decisions quickly in an emergency situation.

It is possible that practices will need official documents signed while partners are absent from the practice in isolation. If a partner is in isolation, electronic signature platforms may be an effective and efficient way to get documents signed where a witness isn’t needed. Alternatively, the documents could be printed, signed and returned perhaps as a scanned copy by email. However, if a witness is required (such as a partnership deed, declaration of trust, lease or Land Registry transfer deed), the witness must be physically present when the deed is signed. At the time of writing, it is not possible under the law of England and Wales (where Hempsons operates) for deeds to be witnessed via video link or other remote means. There might be different rules in Scotland and Northern Ireland which a local solicitor would be able to verify. Some creative solutions we have heard include having the signature witnessed through a closed window with the document then posted back and forth through a letterbox to enable the witness to sign also (perhaps using disposable gloves to be on the safe side).

8. Collaborative working

The Covid-19 crisis has led many practices to work much more closely together. Primary care networks have often been a vehicle for this cooperation. There is an expectation that practices will work with non-GP providers, for example to deliver enhanced health in care homes and care for vulnerable patients. When working with others in this way, it is important for practices to agree with other organisations what their respective roles and obligations will be, how liabilities and risks will be shared and how joint decisions will be taken. They also need have appropriate data sharing and processing arrangements.

 Alison Oliver is a partner in the primary care team at Hempsons. She advises GP practices, provider companies and primary care networks on partnership and company law issues, NHS contracting, collaboration and governance arrangements. Hempsons is a leading health and social care law firm ranked as one of the best specialist law firms in England and Wales in 2020.

Disclaimer: this article is for information purposes only and should not be relied on as legal advice. Neither the author nor Hempsons will be liable for losses arising from reliance on the information in this article. The article is based on the law of England and Wales and there might be variations in other jurisdictions.