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The Coronavirus Act and the Healthcare Sector

Date: 27/03/2020 | COVID-19, Healthcare, Employment & HR, Health & Safety

A piece of emergency legislation, the Coronavirus Act 2020 ("the Act"), is now, for the most part, in force. It provides for new (and in many cases unprecedented) powers of a temporary nature to deal with the COVID-19 pandemic ("coronavirus"). This article provides a summary of the key provisions that may affect those operating in the healthcare sector in Scotland.

We are acutely aware of the pressure that the healthcare sector will be under at present and in the forthcoming weeks and months. The Act particularly affects the healthcare sector and that sector is the focus of this article.  A separate article here is available for aspects of the Act that will affect a wide range of sectors.  In some cases, that includes the healthcare sector.  For example, where a medical practice is an employer, there are changes that the Government have announced are to be made to the statutory sick pay regime covered in that article.

This article covers select contents of the Act (in the form that it first came into force). 

Insofar as the Act affects the healthcare sector in Scotland, the following provisions covered in this article are of particular note.  Should you have any questions about these provisions or any other questions about how coronavirus is affecting the operation of your practice or business, please contact your usual Davidson Chalmers Stewart LLP contact.

1. Emergency arrangements for temporary registration of medical practitioners
  • The National Health Service (Primary Medical Services Performers Lists) (Scotland) Regulations 2004 (“the 2004 Regulations”) are to be amended to allow a person who is registered on the GP Register by virtue of the temporary registration in case of emergencies provision – being section 18A of the Medical Act 1983 – to perform primary medical services if certain conditions are met (see below). 
  • The conditions are that:
    • The person has made an application to a Health Board for inclusion in the primary medical services performers list (“PMSPL”) of a Health Board; and
    • The person’s application has not been refused or deferred under the 2004 Regulations (under regulation 7 or a new regulation 7B introduced by the Act)
  • The person can only perform primary medical services under this new part of the 2004 Regulations (introduced by the Act) in the area of the Health Board whose list they have applied to be included in.
  • The person must exercise the same standard of judgement, behaviour, skill and care towards patients as a practitioner who is included in the Health Board’s PMSPL.
  • Amendments are also made to the 2018 GMS and PMS contract regulations to facilitate the employment of temporary medical practitioners under the terms of the Act.
  • The GMS and PMS contract regulations are amended to provide an exception to the usual requirements that:
    • a medical practitioner must be included in the PMSPL for the Health Board in order to provide medical services under the GMS/PMS contract;
    • a medical practitioner has provided the practice (as the contractor/provider) with the details of the PMSPL list that they appear on and that the contractor needs to check the practitioner meets the qualification requirements in the GMS/PMS regulations; and
    • a practice (as the contractor/provider) obtains two clinical references and that the practice is satisfied with the reference.
  • Finally, it should be noted that the Act gives the Scottish Ministers the power to modify the provisions described above by regulations.
2. Emergency arrangements for temporary registration of nurses, midwives, nursing associates and other health professions
  • The Nursing and Midwifery Order 2001 is amended by the Act to allow the Registrar to register a person as a registered nurse, midwife or nursing associate in circumstances where the Secretary of State indicates to the Registrar that there is an emergency and an “emergency registration requirement” (see below) is met in relation to a person.
  • The Health and Social Work Professions Order 2001 is amended to allow the Registrar to register a person as a member of any of the professions listed in this Order in circumstances where the Secretary of State indicates to the Registrar that there is an emergency and an “emergency registration requirement” (see below) is met in relation to a person.
  • The emergency registration requirement in relation to both of the above orders is met if the Registrar considers that the person is a fit, property and suitably experienced person to be registered as a member of the profession in question with regard to the emergency.
  • Emergency is defined as an event or situation which threatens serious damage to human welfare in the UK or in a part or region, which includes human illness or loss of human life.  It would, in this case, presumably be the coronavirus pandemic.
3. Emergency arrangements for temporary registration of social workers
  • The Regulation of Care (Scotland) Act 2001 (“the 2001 Act”) is amended to allow the Scottish Ministers (“SM”) to give the Scottish Social Services Council (“SSSC”) a direction to consider application for registration as a “temporary social worker” under a new provision in the 2001 Act. 
  • Where the SM give such a direction, the SSSC may grant applications for registration as a temporary social worker
  • Temporary social workers can be either:
    • those who retired or are on a career break but have been registered on a relevant register (as defined) in the last 5 years who:
      • are of good character;
      • satisfy such requirements as to competence or conduct as the SSSC may impose by rules; and
      • satisfies one of two requirements as to education as the Council may either by rules impose or otherwise consider appropriate.
OR
  • those who are final year students in a social work course (either a SSSC approved course or other course as the SSSC considers appropriate) and who:
    • are suitably experienced to be registered as a temporary social worker (despite not yet having finished their course);
    • are of good character; and
    • satisfy such requirements as to competence or conduct as the SSSC may impose by rules.
4. Indemnity for health service activity
  • The Act provides for discretion on the part of the Scottish Ministers to indemnify or make arrangements for a person (e.g. a medical practitioner) to be indemnified by an authorised person in specific circumstances provided as part of the health service.
    • For example, where there is a breach of a duty of care, under the Scots law of delict, in relation to caring, treating or diagnosing a person (“patient”) who has, or is suspected of having coronavirus, and the patient suffers injury arising out of, or in connection with, that breach.
  • An authorised person (who is the person that would indemnify e.g. a medical practitioner) is someone who is authorised by the Scottish Ministers.  It could, for example, be the Health Board.
  • This indemnity will not be available in circumstances where an arrangement under an insurance policy, for example, would cover the liability of the person (e.g. the medical practitioner).
  • This is a detailed provision, of which the very broad outline has been provided here.  Should you have any questions, please do contact your usual Davidson Chalmers Stewart Healthcare Team contact.
5. Vaccinations in Scotland
  • The Act amends the National Health Services (Scotland) Act 1978 (“the 1978 Act”) and related secondary legislation so that the Scottish Ministers can arrange for the vaccinations or immunisation of persons against any disease. 
  • For as long as the Act is in force (i.e. from the day it becomes an Act), this replaces the existing provision in the 1978 Act that allows the Secretary of State to arrange with medical practitioners for vaccination or immunisation against any  disease to be carried out by medical practitioners or those acting under a medical practitioner’s direction and control. 
  • The intention behind this change is to allow a wider range of health professionals to administer vaccinations and immunisations to respond “as flexibly as may be required to the pandemic”.
6. Health protection regulations
  • The Act gives powers to the Scottish Ministers (“SM”) to make regulations related to the prevention, protection, controlling or provision of a public health response.
  • On Thursday 26 March 2020, at 7.15pm, the Scottish Ministers made regulations under this part of the Act that came into force immediately. They restrict the movements of people generally and make provisions for certain businesses/premises to close or restrict the way in which they operate (examples include restaurants, bars and pubs). If you are concerned about whether or not your business/practice is entitled to remain open, or what restrictions it is under, please contact us.
  • It appears to be competent that more than one set of regulations can be made under this part of the Act, so more regulations may follow.
  • Examples are given of the types of provisions that might be made in the regulations.
  • One example is to require registered medical practitioners (or other persons) to record and notify cases or suspected cases of infection or contamination.  The fact that it is mentioned does not necessarily mean that regulations will actually be brought in to deal with this but it is clearly possible and, given that it is expressly mentioned in the Act, quite likely.
  • The Act also allows for powers for SM to impose a special restriction or requirement in circumstances where there is a serious and imminent threat to public health (as there is here). 
  • Examples of powers that can be imposed, in circumstances where they are proportionate to their objectives, are (1) that the person provide information or answer questions about the person’s health or other (personal) circumstances and (2) that a person has their health monitored and the results reported.
  • The powers also allow SM to require, by regulations, premises be closed or disinfected or decontaminated.
  • The regulations cannot include provision for a person to undergo medical treatment (which is defined to include vaccination and other prophylactic treatment).
  • The provisions of the Act that gives these regulation-making powers to the SM are convoluted.  In the event that you are requested to carry out acts under any regulations made under this part of the Act and wish to seek legal advice, please do contact us.
7. The duration of the legislation
  • The powers contained in the Act are temporary in nature. 
    • Some provisions of the Act can be suspended and revived.
    • The substantive provisions of the Act are also subject to an initial expiry period of 2 years from 25 March 2020. 
    • This can be tailored to be a shorter period or a longer period (not longer than 6 months at each time) for any particular provision of the Act, allowing for the relevant provisions of the Act only to apply when needed.
    • There are also reporting obligations imposed on the Secretary of State in respect of non-devolved aspects of the Act to report on the use of those provisions of the Act. 
    • There is also a six-monthly parliamentary review mechanism for the provisions of the Act that are limited to be temporary in nature (i.e. subject to the initial expiry period).

Should you have any questions about the Coronavirus Act and how its provisions might affect you and your practice, please do get in contact with the Davidson Chalmers Stewart Healthcare Team.  We will continue to review any regulations and directions made under it that apply to Scotland.

Disclaimer 
The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.


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