Doctors working outside their expertise during the pandemic
What are the ramifications on professional indemnity and the GMC.
Healthcare professionals in the UK have been treating patients with COVID-19 since March 2020. It appears to be an ever-changing virus with a number of variations having been discovered over the last year, which means there is still a developing understanding around it. Many doctors have been working with stretched resources, outside of their expertise and it appears that, earlier in the pandemic, were sometimes without adequate PPE.
In response to the pandemic, the Coronavirus Act (the “Act”) received Royal Assent on 25 March 2020. Under Section 98 of the Act, a six-monthly review is necessitated so that MPs can vote on whether to keep provisions of the Act in force.
The Act increases the available health and social care workforce with a number of measures, such as the registration of suitable people as regulated healthcare professionals (recently retired professionals and students nearing the end of their training, for example).
Clinical negligence indemnity
The Act also ensures that those providing healthcare service activity across the UK are legally protected for the work undertaken as part of the response to the pandemic.
The Government confirmed it will provide indemnity for clinical negligence liabilities arising from NHS activities carried out in relation to Coronavirus where there is no existing indemnity arrangement in place.
If engaged by an NHS trust to provide NHS services, doctors and other healthcare workers will be covered by the Clinical Negligence Scheme for Trusts. If engaged by a GP practice to provide NHS services, individuals will be covered by the Clinical Negligence Scheme for General Practice. [Subject to being within the scope of the scheme]
Indemnity for GMC investigations
What the Act does not allow for in terms of professional indemnity is in providing healthcare professionals with reassurance that they will not face unfair investigations by their employer, the GMC or even by the Crown Prosecution Service in serious cases. The Act does not provide indemnity for non-NHS activities and those who are not indemnified by a Medical Defence Organisation (“MDO”).
Concerns have been voiced by MDOs on behalf of their members. Many doctors are worried that they may face investigation for clinical decisions made in good faith. The suspension of routine investigations and outpatient appointments and the resulting backlog of referrals will also give rise to medico legal disputes and investigations.
MDOs have confirmed that they will, at no cost, provide professional indemnity protection to their former members who have re-registered to work on the COVID-19 response as well as of course for their existing members, to cover investigations by the GMC or criminal investigations but there are currently no emergency laws to protect healthcare professionals who are not members of an MDO from such investigations. This is despite campaigns to the Government by the MDOs at the six-month review point of the Act.
Although campaigns to protect healthcare professionals in terms of their indemnity were unsuccessful at the six-month review point of the Act, the GMC issued specific guidance in September 2020 pertaining to how it will deal with complaints and investigations during the pandemic.
This guidance is to be considered alongside the GMC’s existing guidance, to support GMC decision makers in determining how to assess the overall risk to public protection (including patient safety, public confidence and upholding professional standards) posed by a doctor in relation to allegations of impaired fitness to practise in a clinical setting during the COVID-19 pandemic.
Decision makers should take into account the specific issues relating to the circumstances which have arisen as a result of the COVID-19 pandemic and a non-exhaustive list is set out within the guidance. This includes ways of working outside of normal routine and practice and requirements to work in unfamiliar roles, teams and/or environments at short notice and the issue of the changing and sometimes conflicting guidance and protocols, which are often produced and communicated quickly.
Considering the difficulties and pressures doctors were facing at the time of an incident during the COVID-19 pandemic, the GMC will consider how doctors provided the best and safest care, communicated effectively, challenged poor practice and whether they exhausted any other means to address concerns.
Having considered the circumstances which have arisen as a result of the COVID-19 pandemic when considering allegations about a doctor in a clinical setting, this may result in the allegations:
- being unlikely to raise a question of impaired fitness to practise but involving possible failings where there is an opportunity for reflection and improvement
- being unlikely to raise a question of impaired fitness to practise because, while on the face of it serious, information gathered indicated that the doctor’s actions and/or conduct were reasonable in the circumstances of the pandemic; or
- being likely to raise a question of impaired fitness to practise having taken the circumstances of the pandemic into account.
A non-exhaustive list of examples with regard to whether allegations are likely to bring into question a doctor’s fitness to practise is provided by the guidance. Of note, the following circumstances are set out as examples where allegations are unlikely to raise a question of impaired fitness to practise because, even though on the face it serious, information gathered indicated that the doctor’s actions and/or conduct were reasonable in the circumstances of the pandemic:
- a doctor’s action appears to have put patients at risk during the pandemic, but we ascertain that at the time clear guidelines about those aspects of treatment were unavailable, not easily accessible, or there were conflicting guidelines
- a doctor’s actions have led to harm or risk of harm to a patient, but the doctor was required to work outside their usual area of practice with limited or no support and guidance to do so safely.
Despite the circumstances of the COVID-19 pandemic, a doctor’s actions may have been reckless or so serious that the circumstances of the pandemic are unlikely to reduce the risk they pose to public protection. It is encouraging that the circumstances set out as examples do not include any reference to doctors working outside of their usual scope of practise.
In allowing legal protection for healthcare professionals, the legislation would of course have to be temporary to ensure that the floodgates are not fully opened for the Government to always offer that protection outside of the pandemic.
As we start to emerge from the pandemic, it seems unlikely that the Government will amend the Act at its next review. However, this is an ever-changing situation and so it is unclear how this will be left at present.
This therefore has the potential to leave healthcare professionals in an unfortunate position if they are not a member of a MDO, and at risk of being subject to complaints and investigations without legal protection. With the timeframes involved in such investigations, this could mean responses and subsequent fitness to practise hearings take place sometime into 2022. In that scenario doctors would have to re-live their experiences of the pandemic by giving evidence at a time when they should perhaps be able to move on. It leaves many in the unenviable position of having to fund their own defence lawyers privately. Doctors and their representatives will therefore be interested to pay close attention to the Government’s six monthly review of the Coronavirus Act to monitor any changes that may take place.
For further information, contact our professional negligence solicitors.