COVID-19 Legal Developments for Health Services, Emergency Measures in the United Kingdom

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The UK government has introduced sweeping changes to the UK health legislation as it urgently prepares for the impact of the Coronavirus (COVID-19) pandemic, including increased admissions and demand for intensive care facilities.

In the space of one week, urgent procurements and build programmes have seen the construction of new intensive care unit (ICU) facilities, the conversion of conference space to create a 4,000-bed COVID-19 hospital, and escalated procurement and device approval for ventilators and testing kits.

The changes include an emergency centralisation of national health service (NHS) purchasing decisions (allowing NHS England rather than local clinical commissioning groups to purchase beds and other facilities), simplification of certain health procedures and changes in payments for health services.

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Coronavirus Act 2020

The Coronavirus Act 2020 extends to 358 pages of legislation and makes sweeping changes to the various government functions and law relating to pensions, eviction of tenants and the holding of elections.

The Act commenced on 26 March 2020 and expires within two years. Certain provisions do not come into force immediately and will commence pursuant to secondary regulations.

This article considers certain elements of the Act relevant to the provision of health services, namely, changes in respect of the registration of healthcare professionals, negligence indemnification, NHS pensions, management of the deceased and mental health legislation.

Healthcare Professionals

The new bill introduces new registration powers for the Registrars of the Nursing and Midwifery Council (NMC) and the Health and Care Professions Council (HCPC). The aim of these powers is to address staff shortages to manage increases in COVID-19 patients.

The NMC and HCPC will be able temporarily to “register fit, proper and suitably experienced persons as regulated healthcare professionals”. These provisions will enable the re-registration of key healthcare professionals, including doctors, nurses, midwives and paramedic staff, who are retired or who no longer work in the healthcare sector. Measures also include the early registration of final-year students in the same fields in an effort to increase staff numbers.

The UK government also launched a campaign for volunteers to support the COVID-19 response. As of 29 March, 2020, more than 750,000 individuals had volunteered and the scheme has been paused to process the high level of volunteers who have applied.

The Act introduces a new form of unpaid statutory leave and powers to establish a compensation scheme for some loss of earnings and expenses incurred by volunteers.

Indemnification – Protection from Negligence for COVID-19 Services

Under existing NHS legislation, state-backed indemnity schemes provide protection to NHS bodies for negligence claims arising out of the provision of health services. In England, this is known as the Clinical Negligence Scheme for Trusts (CNST). Since 2013, independent providers have been able to join CNST.

The Act includes powers to extend this indemnity coverage for those providing NHS and health and social care activities connected to care, treatment or diagnostic services in respect of the COVID-19 pandemic, or where NHS services are provided by other organisations as a consequence of the pandemic.

These arrangements offer a safety net to all providers of COVID-19 health services, and mean that separate insurance arrangements do not need to be put in place. This will be particularly relevant for independent sector providers of COVID-19 healthcare where those providers are not already members of CNST.

Pensions for Retired Healthcare Professionals

In order to encourage retired healthcare professionals who already receive an NHS pension to return to work, the Act suspends abatement rules on pensionable pay, which would usually apply following a return to employment. This means that healthcare professionals who have recently retired can return to work, and those who have already returned can increase their hours without incurring a negative impact on their pension entitlements.

Managing the Deceased

In anticipation of increased mortality rates, the Act relaxes various legal requirements in respect of the registration of deaths and the management of the deceased. In particular, requirements are reduced in respect of medical practitioner signatures on medical certificates and reports to coroners. Current requirements that informants registering deaths attend personally before a registrar are removed so that death registration may occur remotely.

COVID-19 is a notifiable disease, meaning that any inquest into a death must have a jury. The Act suspends the Coroners and Justice Act 2009 so that there is no duty to hold a jury inquest, although the coroner retains the discretion to hold such an inquest if the coroner considers there is reason to do so.

Mental Health

The Act introduces temporary changes to mental health legislation, including relaxation of requirements relating to the detention and treatment of patients. Temporary amendments also allow for the extension or removal of certain time limits relating to the detention and transfer of patients.

Business Tenancies – Healthcare Facilities and Premises

Where a business tenant (which may include a healthcare provider) occupies premises under a lease, the Act provides that a tenant who cannot pay the rent is protected from forfeiture until at least 30 June 2020. This means that no business tenant can be forced out of its premises if it misses a payment in the next three months. However, the tenant will still be liable for payment of the accrued rent following 30 June 2020. In addition, any enforcement action for non-payment of rent which has already been issued by a property owner is suspended until 30 June 2020.

Coronavirus Emergency Services Provisions by the Independent Sector

On 24 March 2020, NHS England and NHS Improvement announced a national agreement with independent sector healthcare providers to secure all available inpatient capacity resources in every area in England as part of the response to COVID-19.

These national purchasing agreements were enabled by new emergency secondary legislation (The Exercise of Commissioning Functions by the National Health Service Commissioning Board (Coronavirus) Directions 2020) which came into force on 20 March 2020.

These directions move commissioning responsibility from local NHS clinical commissioning groups to NHS England in respect of COVID-19. This means that instead of fragmented local purchasing arrangements in respect of COVID-19 services, a single national agreement and commercial approach has been adopted.

The directions mean that NHS England has responsibility for the commissioning of healthcare services from the independent sector, and for any other function that NHS England deems appropriate for the purposes of directly or indirectly supporting the provision of services by NHS bodies to address COVID-19.

Under the arrangements, a national contract will override any local agreements in place and will operate from 23 March 2020 for a minimum period of 14 weeks.

It is anticipated that independent sector healthcare providers will deliver inpatient respiratory care to COVID-19 patients, urgent time-dependent NHS elective services, diagnostic capacity, and in-patient non-elective care to NHS patients, and will also make clinical and support staff available who are able to be redeployed in other settings. This contracted provision will cover almost 8,000 beds, of which 160 are Intensive Treatment Unit beds and 107 are High Dependency Unit beds.

Under the arrangements, from 23 March to 16 April 2020 independent sector providers may continue to deliver all types of elective care (NHS or private) if there is capacity. However, after 16 April, independent sector providers must only deliver priority urgent elective and urgent cancer pathways (NHS or private). NHS hospitals are under similar requirements.

In practice, this means that there will be minimal (if any) NHS or private provision of non-urgent elective or cancer pathways from 16 April and during the COVID-19 pandemic. This is likely to lead to a backlog of care and may exacerbate some conditions. Consequently, there is likely to be a requirement for significant capacity to deal with these cases when the COVID-19 pandemic has abated.

Reimbursement for Health Services Affected by COVID-19

Many providers of health services will be affected by significant falls in demand for services as a consequence of COVID-19.

In particular, elective care services, dental services, mental health services and certain community services will be significantly adversely affected by rules requiring members of the public to “stay at home,” or where natural patient concerns regarding safety cause patients to delay or defer care and to only seek medical attention in cases of emergency.

For providers of private health services, the UK government’s measures in respect of payments to furloughed employees may provide some assistance.

For independent sector providers of NHS services, negotiations are ongoing in respect of the payment for NHS services which are likely to experience reductions in activity and in order to protect availability of services after COVID-19.

On 20 March 2020, the Cabinet Office issued a Procurement Policy Note – Supplier relief due to COVID-19. This note sets out information and guidance for public bodies on payment of suppliers to ensure service continuity during and after the current COVID-19 outbreak. It requires public bodies, including local government and NHS bodies, to ensure suppliers at risk are in a position to resume normal contract delivery once the outbreak is over.

The note requires public bodies to review their contract portfolio and inform suppliers that they believe are at risk that they will continue to be paid as normal until at least the end of June 2020, and to put in place appropriate payment measures to support supplier cash. If the contract is on a “payment by results” basis, then payment should be on the basis of the previous invoices (for example, the average monthly payment over three months).

Separately, NHS national bodies are issuing regular updates in respect of reimbursement of national health services, including in respect of preparedness and financial arrangements for primary care, dental services and mental health, although at the time of writing, some uncertainty remains regarding reimbursement for providers of national health services who experience reduced activity. There has been recognition of the need to ensure that providers remain viable and continue to trade to deal with likely demands on health services after the outbreak as subsided and financial terms to protect these providers is anticipated although is currently uncertain.