Health Sector News – Review of May 2020

Blake Morgan’s Health Sector legal experts have put together a round-up of the latest news within this area.

Welcome to the review of the May edition of Health Sector News, a digest of legal issues hitting the headlines in the health sector.

To all those working in the healthcare sector, Blake Morgan continues to offer its full support. We are here to provide any advice and assistance as and when required.

The nature of the legislative landscape is changing rapidly at present and there are also differences in the laws and guidance which apply in England and in Wales. We have set out some of the most topical issues from last month, but these are by no means exhaustive.

You can also keep up to date with our latest articles and blogs on legal issues arising during this pandemic by going to the dedicated COVID-19 insights section.

COVID-19 related healthcare news

Revised Regulations in England to deal with COVID-19

On 13 May 2020, changes were brought into force by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020 which introduced some easing of some of the restrictions on movement originally imposed in England. These regulations make the following changes:

• Providers of holiday accommodation can provide accommodation to any designated key worker whose need for accommodation is connected to their work;
• The list of reasonable excuses for a person to leave the place they are living has been extended to include:
  • collecting goods that have been ordered online, by telephone including text messages, by post or phone;
  • taking exercise alone, with one or more members of their own household or one member of another household;
  • visiting a public open space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing alone, with one or more members of their own household or with one member of another household;
  • visiting estate or letting agents or properties with a view to buying, selling, letting or renting residential property; and
  • to use a waste or recycling centre.
• Increasing the fixed penalties for breaching the regulations. The first penalty will now be £100 (from £60), reduced to £50 (from £30) if paid within 14 days. The second penalty will be £200 (up from £140) and third or subsequent fixed penalty notices will be for double the last fine, up to a maximum of £3,200.
• Garden centres and outdoor sports courts are now able to remain open.

Revised Regulations in Wales to deal with COVID-19

On 11 May 2020, changes were brought into force by The Health Protection (Coronavirus, Restrictions) (Wales) (Amendment) (No. 3) Regulations 2020 which set out the following:

• Require the Welsh Ministers to ensure that restrictions and requirements imposed by them are proportionate to achieve their aims;
• To ensure that any changes to the original Regulations (ie. to The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020) are made by an amendment and not a ministerial direction;
• Libraries, garden centres and plant nurseries are permitted to open provided social distancing measures are undertaken;
• It is now a reasonable excuse to leave a person’s place where they are living to:
  • collect goods which have been pre-ordered,
  • use a library, and
  • use a recycling or waste disposal facility
• There is no limit on the number of times a day a person may leave home for exercise, provided that the exercise is within an area local to the place where the person is living. Specific guidance on leaving home to exercise has also been issued.

The regulations above were followed up on 22 May 2020 by The Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 4) Regulations 2020 to increase the fixed penalties for breaching the regulations. The first and second fixed penalty notices will remain at £60 and £120 respectively whereas the third offence will be £240 (up from £120), the fourth offence will be £480 (up from £120), the fifth offence will be £960 (up from £120) with sixth and subsequent fixed penalty notices being £1,920.

Traffic light roadmap for Wales in easing the coronavirus lockdown unveiled

On 15 May 2020, the Welsh Government also issued guidance detailing a traffic light roadmap on how Wales could exit the coronavirus lockdown, which can be accessed here.

The Department of Health and Social Care publishes report on which parts of the Coronavirus Act 2020 are active

A Department of Health and Social Care report explains which powers in the Coronavirus Act 2020 are currently active. Due to the temporary nature of the provisions of the Act which are designed to be switched on and off as necessary, such a report will be made every two months on the non-devolved provisions of the Act.

The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020

Amendments to the Schedule to the Statutory Sick Pay (General) Regulations 1982 were brought into force on 28 May to provide that a person will be entitled to statutory sick pay if they have been advised, by a relevant notification, that they have had contact with a person who has coronavirus, and that they should stay at home and self-isolate as a result.

NHS trusts told not to buy PPE individually but to allow the UK to buy nationally

NHS trusts have been told to stop procuring their own personal protective equipment (PPE) and mechanical ventilators by the Government.

The letter to trust procurement directors, referenced the global demand for PPE and other supplies saying that these goods would be procured on a national level to reduce competition for supplies.

The letter which was sent by Jonathan Marron, a senior Department of Health official responsible for PPE, and Emily Lawson, chief commercial officer of NHS England requires the details of any significant procurement already in progress of items of items listed in the letter, to be flagged to relevant NHS trust heads of procurement and government teams.

The health department defended the letter by Mr Marron and Ms Lawson as a “sensible measure” that “also allows us to achieve the best commercial terms through volume”.

Welsh Government personal protective equipment (PPE) guidance for buyers

The Welsh Government have developed a guide to assist when assessing PPE from suppliers outside its existing supply chain.

The desktop guide to assist the Welsh public sector when checking that the certification provided meets all the legal requirements for PPE to be sold in the UK. The guide incorporates advice received from the British Safety Industry Federation, the Medical Healthcare Regulation Agency, technical experts from our PPE framework suppliers, and from the wider public sector.

Doctors call for immediate inquiry into PPE shortage

The Doctors Association UK (DAUK) and the Good Law project have sent a pre-action letter to the Department of Health and Social Care (DHSC). They have taken the step to force an independent inquiry into the UK government’s failure to provide adequate personal protective equipment to NHS staff and frontline care workers.

The letter alleges a failure on the part of the government to adequately stockpile gowns, visors, swabs or body bags during the pandemic. The letter also references claims by UK businesses that their offers to help were ignored by the government.

The letter sets out that the government has an obligation on under the Human Rights Act 1998 and article 2 of the European Convention on Human Rights to commence an immediate and independent investigation into issues surrounding the procurement and distribution of PPE within both the NHS and wider social care system prior to and during the current crisis.

The full story is available here.

Biosecurity and national security inquiry

Following up the previous Committee’s partially completed inquiry into biosecurity in 2019, and the continued salience of such pandemic risks with COVID-19, the Joint Committee on the National Security Strategy is examining how biosecurity is addressed in national security planning and resilience implementation.

Changes to abortion laws during COVID-19

On 30 March 2020, the government relaxed its abortion rules due to the spread of COVID-19 and in particular the lockdown measures announced on 23 March 2020. The Secretary of State granted an approval, pursuant to s.1(3A) of the Abortion Act 1967 allowing women to have medical abortions at home. Before 30 March 2020, women would have to attend a clinical setting to take Mifepristone and to obtain Misoprostol, which could then be taken at home.

In April 2020, Christian Concern launched a legal challenge against the Department for Health and Social Care, arguing that the government’s decision to alter abortion policy “usurps proper parliamentary procedure” and would put women’s lives at risk.

Singh LJ and Chamberlain J dismissed the claim on all grounds finding that the Secretary of State acted within his powers and that it was not unlawful for any of the reasons advanced.

Changes to the way the CQC deals with complaints about the use of the Mental Health Act 1983  during the pandemic

The Care Quality Commission (CQC) has made changes to the way in which it responds to people contacting them with a complaint about use of the Mental Health Act.

The CQC will prioritise contacts received from or about people who are currently detained on an inpatient ward in hospital.

The CQC will continue to review all other Mental Health Act complaints during the pandemic but these complaints may be paused.

More information is available here.

Health Inspectorate Wales issue COVID-19 registration guidance for independent healthcare settings

Temporary changes to Health Inspectorate Wales’ (HIWs’) registration process have been made as a result of the COVID-19 outbreak. A COVID-19 registration is any ‘application’ from an independent health care provider where they:

• Intend to deliver services which provide additional health care capacity in an area; or
• Contribute to the control of the outbreak of COVID-19 or the treatment of people who have contracted the illness.

The aim of the changes is ensure HIW staff and persons seeking to register with HIW are protected from the risk of infection and are complying with social distancing measures to help reduce the transmission of the virus. While at the same time to allow HIW to continue to conduct a thorough and proportionate assessment of HIW registration applications. Changes have been made to the following aspects of the HIW registration process:

• Registered Manager ‘Fit Person’ Interviews – all registered manager ‘fit person’ interviews will be conducted via video-link.
• Pre-registration Site Visits – desktop assessments will be conducted by HIW in place of pre-registration site visit
• Disclosure and Barring Service (DBS) Checks – processes changed for private dental practice and independent health care services
• Medical Reports by a General Practitioner (for persons seeking to be registered in respect of independent health care services only) – if you are unable to obtain a medical report by a General Practitioner, HIW will accept a statement by from you as to the state of your physical and mental health.
• Issuing Statutory Notices (Notice of Decision and Notice of Proposal) and HIW Certificates of Registration – Notices of Proposal and Notices of Decision will be sent by email, wherever possible. HIW Certificates of Registration will continue to be sent by post

More information and FAQs are available on the HIW website.

Care home residents’ families demand restart of inspections

Families of care home residents are demanding the re-start of statutory inspections by the CQC which were suspended on 16 March 2020 so that they could reduce virus spread and pressure on care providers, instead setting up video conference calls with managers as part of an alternative system.

The Relatives and Residents Association said it was receiving daily calls to its helpline with concerns about staffing levels and lack of PPE, medical support and management control in care homes.

Business continuity and financial support for dental practices in Wales providing NHS services

The Chief Dental Officer of Wales Colette Bridgman has written to primary care dental practices providing NHS services, detailing the financial support available in light of the ongoing coronavirus pandemic. The guidance reiterates that the “priority remains the protection of the public and the workforce, while ensuring current support and the future sustainability of dental practices.”

A copy of the guidance can be viewed here.

Pregnant NHS worker sues NHS agency

In a potential landmark case over contractual rights during the coronavirus pandemic, a pregnant healthcare assistant is planning legal action against NHS Professionals for refusing to put her on furlough. After being sent home for safety reasons at the start of the pandemic, “Ms A” has been without pay for eight weeks which her lawyers argue is a breach of the Employment Rights Act.

Coronavirus (COVID-19): Information and advice (Nursing and Midwifery Council 29.05.20)

The Nursing and Midwifery Council has published information and advice on its website relating to how it will continue to operate as a regulator during the coronavirus pandemic.

NHS England and NHS Improvement welcome publication of updated risk assessment guidance (NHS England Press Release 28.05.20)

NHS England and NHS Improvement have welcomed the publication of updated risk assessment guidance which provides practical measures to advance the way risk assessments are carried out for BAME, at risk and other vulnerable staff groups working across the NHS in the context of the coronavirus pandemic.

Infection Control Fund: Grant Conditions (Local Government Association 29.05.20)

A briefing has been issued by the Local Government Association for councils explaining the provisions of the Adult Social Care Infection Control Fund Ring-Fenced Grant 2020, and its requirements. The LGA website states “We are continuing to press the Department of Health and Social Care (DHSC) on the conditions linked to the £600 million Infection Control Grant, particularly relating to its scope, the reporting requirements and the issues related to state aid.

We are currently working with colleagues from DHSC, the Association of Directors of Adult Social Services and councils to explore the issues and how they might be managed.”

Other healthcare news

Organ donation changes in England

From 20 May 2020 a change to the legislation sees every adult in England automatically considered an organ donor by virtue of the Organ Donation (Deemed Consent) Act 2019. The change was brought about following campaigning by a young boy who got a new heart from a nine-year-old girl who died after a car crash and is commonly referred to as Max and Keira’s Law.

The opt-out system, which has been in place in Wales since 2015, has been considered a success.

Under the new system, all adults can be considered as a possible organ and tissue donor when they die, unless they have recorded a decision not to donate or are in an excluded group.

Family consent will still be required for organs or tissues to be retrieved, both out of consideration for the family, and to make sure additional relevant information is gathered.

More information is available here.

HTA Codes of Practice and Standards: Code F: Donation of solid organs and tissue for transplantation

The Human Tissue Authority has issued a revised Code of Practice (Code of Practice F: Donation of solid organs and tissue for transplantation) to provide advice and guidance to transplant professionals in England on how the new deemed consent system will affect their practice.

Master’s programme in the legal issues around coronavirus

A master’s programme in law and health, which will focus initially upon legal issues surrounding COVID-19 is being introduced by Kent Law School. The Kent LLM which is set to be introduced in September 2020 will initially focus on legal issues arising from the UK’s response to COVID-19. Students will study the relationship between health, law and regulations.

This article is co-authored by Tom Beard.