Section 1 – Enhanced capacity and flexible deployment of staff
Emergency registration of health professionals
The power provided in this clause will allow Registrars the ability to carry out emergency registration of healthcare professionals. This will allow for the registration of any professional regulated by the Nursing and Midwifery Council or the Health and Care Professions Council. It is hoped that this will help to ease the pressure on services to enable to delivery of essential healthcare services in this emergency period.
Other policy options considered?
The NHS and wider health are care system has been developing and implementing a number of plans to deal with the additional demand. The National Pandemic Influenza Service will be initiated, and non-urgent operations and services will be cancelled or delayed. Both of these actions should release staff who can be deployed to other critical services. These form a core part of the UK Influenza Pandemic Strategy 2011. Similarly, the NMC already has the power to increase registrant’s responsibilities in the event of emergency involving loss of human life or human illness – for example by enabling nurses (not already qualified to do so) to order drugs, medicines and appliances in a specified capacity with regards the emergency.
There would be an option of ‘do nothing’ beyond what is already set out in this plan and using the powers already available. However, the route of emergency registration is favoured as a way of additionally adding resource into the system, alongside the options set out above.
Key considerations
The potential economic impacts of this provision include the increased cost to the NHS of paying for the wages of any additional staff brought in through this route and a linked cost to the provision of indemnity arrangements set out in Clause 7. However, this additional cost may be off-set by the increased potential to lessen the wider economic impact of having members of the public seriously ill and therefore not at work, because of the increased capacity of the health care system.
For individuals who are registered using these powers – based on the discretion of the professional regulators’ registrar at the time – there will be no obligation for them to provide services, it would be on a voluntary basis. DHSC plans to engage with the professional regulators to ensure that sufficient infrastructure is in place in order to implement the policy. The impact of this volunteering could be to have a galvanising effect on the community, potentially alongside public concerns about the quality of the health and care services being delivered. It is currently unknown how many professionals registered under these powers will be willing to provide services.
The General Medical Council has indicated that re-registering doctors who have left the register in the last three years would provide a potential pool of 15,500 additional doctors. The GMC already has the necessary powers to re-register doctors, so this power is not in the Bill. The Nursing and Midwifery Council have indicated a potential additional 60,000 workers by re-registering Nurses, Midwives and Nursing Associates, who have left the register in the last three years.
Based on these figures we have calculated some estimates, provided below, of re-registering recent leavers and final year students. These early cost estimates are based on working assumptions and should therefore be treated with a high degree of caution.
Cost estimates for re-registering nurses, midwives and paramedics
Of the nurses, midwives and nursing associates that left the NMC register in the last 3 years, 50% are assumed to have retired (based on the results of the NMC leavers survey), and a further 20% are assumed to be willing to re-join the register.
Of the paramedics that left the HCPC register in the last 3 years, we have assumed that 20% would be willing to re-register (there is no information on the proportion that retire).
This results in a total of 6,400 professionals being in scope to re-register.
It is difficult to fully assess the potential costs and benefits of temporarily registering medical professionals, however, estimates have been used that were provided by the GMC to support a previous impact assessment.
Using the GMC’s estimate of the admin costs of temporary registration (£53 in today’s prices) results in a cost of £350,000 for re-registering nurses, midwives and paramedics.
Using GMC’s higher estimate (£123 in today’s prices) results in a cost of £800,000.
Cost estimates for allowing early registration for final year students studying to become nurses, midwives and paramedics
There are around 30,600 students estimated to be in their final year of education studying these professions in the UK. UCAS acceptances in 2017 have been used as a proxy for those who would be in their final year in 2020, however, this is likely to be an overestimate due to people not accepting their place, dropping out or taking longer courses.
We have assumed that all 30,600 would be willing to join the register early.
As above, it is difficult to fully assess the potential costs and benefits of temporarily registering medical students, however, estimates have been used that were provided by the GMC to support a previous impact assessment.
Using GMC’s estimate of the admin costs of temporary registration (£53 in today’s prices) results in a cost of £1,600,000 to temporarily register final year students studying to become nurses, midwives and paramedics
Using GMC’s higher estimate (£123 in today’s prices) results in a cost of £3,750,000.
The full costs and benefits for these options are difficult to quantify as there is currently no good estimate of how many professionals who are registered using these powers will carry through to deliver services and for how long. Reliable estimates are also not available from regulators on how much each re-registration is likely to cost. The impact will also depend on the roles those emergency registered professionals, who wish to deliver services, would then go on to fill – for example some local areas plan to utilise retired doctors to fill in medical certificates of cause of death (MCCD) whereas other might be used in accident and emergency wards. The NHS will be responsible for overseeing the deployment of any professionals who volunteer to come forward to provide services during the coronavirus outbreak.
There will be potential set up costs for the regulators to run the registration scheme and the additional wages costs. There will also be costs to indemnify the individuals, where applicable, which is described in Clause 7. The potential benefits include additional capacity within the health system, leading to the ability to treat more patients, keep services running longer or run administrative processes more smoothly. This could potentially lead to a reduction in fatalities and serious illnesses during the outbreak period.
Emergency registration of and extension of prescribing powers for pharmaceutical chemists: Northern Ireland
This clause permits the registrar of the Pharmaceutical Society of Northern Ireland to temporarily register a person or a group of persons or temporarily annotate a registered person or group of registered persons in an emergency situation. These measures will enhance the available pharmacy workforce in Northern Ireland.
Rationale for intervention
It is anticipated that these temporary registration measures will ease the pressure on services which we expect to be under particular strain during a coronavirus outbreak.
Other policy options considered
In addition to emergency registration relating to the pharmacy workforce in Northern Ireland, there are other key healthcare professions where an emergency register will also be mobilised.
Timing of when the clause will be needed in coronavirus outbreak (weeks from peak)
Peak minus 4 weeks (estimated).
How would clause be operationalised and time taken?
The clauses will be operationalised when the Department of Health writes to the registrar of the Pharmaceutical Society of Northern Ireland to advise that an emergency has occurred, is occurring or is about to occur and there is the need to consider temporary annotations or registrations to the register.
Anticipated public reaction/controversy
There will be no obligation on individuals who meet the criteria for temporary registration or annotation to be registered under these clauses; it would be on a voluntary basis. Members of the public and patients will want to be assured that those who are temporarily registered or annotated possess the required skills and competencies to carry out their duties safely.
Special considerations for DAs
This is devolved to Northern Ireland.
Spending implications
The full costs are difficult to quantify however any additional costs will be dependent on the numbers of temporary pharmacy staff required. However the additional costs may be off-set by the increased potential to lessen the wider economic impact of having members of the public seriously ill and therefore not at work, because of the increased capacity of the health service.
Emergency registration of social workers
Rationale for intervention
The addition of emergency registrants to the register held by the Registrar of Social Work England (SWE) and Social Care Wales (SCW) will help to deal with any shortage of social workers in the children’s and adult social care sectors as a result of increased staff absenteeism, or increased demand, for example, for care planning.
Other policy options considered?
A ‘do nothing’ option would reduce the ability of both adult and children’s social care services to bring in additional social workers in the face of high staff shortage or raised demands. Some decision-making roles critical to provision of care can only be made by social workers (within the existing legislative and government guidance framework), and staff shortages could leave vulnerable children and adults at risk and lacking safe care provision.
Disapplying legislation requiring social workers to undertake these roles – allowing anyone to take care-critical decisions – would though be a disproportionate response. Such decisions require the application of expert knowledge and experience. These are complex decisions, balancing law, risk of significant harm and personal freedom, which is why registration as a social worker requires a degree in social work. Disapplying requirements for social workers generally would unnecessarily expose large numbers of vulnerable children and adults to unacceptable levels of risk resulting from inadequate decision making.
Key considerations
The potential economic impacts of this provision include the increased cost to social work employers – largely local government – of paying for the wages of any additional staff brought in through this route. However, costs of delayed decision making could be far higher. Delayed decisions could cause a backlog that will create additional pressure on services for many months after any outbreak. Effective management of cases now would be needed to avoid a passing of pressure through the system: for example, children being taken into care unnecessarily would lead to increase cost to the local authority as well as increased pressure on the residential care system which would be suffering from its own lack of staff and capacity issues.
Employers may need to address this through employment of expensive agency staff. If there is a significant increase in staff absenteeism there is risk that this scarcity would lead to a spike in agency rates as competition increases for scarce social worker resource.
In some cases though the lack of social worker input at a critical time could result in increased harm to vulnerable children or adults, for example, leaving a child in the care of abusive parents. This increased harm would be highly likely to increase the long-term cost of future care provision. More importantly, it could leave some of society’s most vulnerable people at risk of emotional or physical harm or death.
For individuals who are eligible to be emergency registered – based on the discretion of the Registrar of Social Work England and the Registrar of Social Care Wales – there will be no obligation for them to do so; it would be on a voluntary basis. DfE, DHSC and SWE for England and the Welsh Government and SCW for Wales will work with employers to establish how these additional social workers could best be deployed.
The full costs and benefits for this option are difficult to quantify. There are around 8,200 ex-social workers who have left SWE’s register within the last two years, meaning they still have recent and relevant practise experience. However, we do not know how many may volunteer, nor likely employer need.
There will be some set up costs for SWE to run the registration scheme, but they expect these to be relatively low. The larger cost would be additional wages costs. Typically, agency social workers may be paid £25-£35 per hour, depending on role and experience. Local authority rates for permanent roles are lower. The potential benefits include additional capacity within the social care system, reducing harm and the costs associated with harm.
Emergency volunteers
Rationale for intervention
Volunteers are an integral and important resource for the health, community health (henceforth referred to collectively as health) and social care systems. With health and social care workforces under increasing pressure, health and social care volunteers play an essential role in the delivery of day-to-day services and are an invaluable resource for local areas to draw upon in the event of emergencies. Volunteers have a wide range of skills and experience that can deployed to undertake a number of regulated and unregulated activities that help to improve the patient experience, tackle health inequalities and support integrated care. These skills are often deployed in community health settings, acute hospital care, mental health care, palliative care, home care and in care homes. A Kings Fund report published in 2013 estimated that the number of volunteers in England alone numbers 3 million and concluded that it was doubtful whether the health and social care systems across the UK could continue to operate without the input of volunteers.
In the event of a severe coronavirus outbreak in the UK, the health and social care systems will come under significant pressure to tackle the outbreak and maintain the delivery of other non-coronavirus related essential services. Not only will demand on health and social care services increase substantially in the event of a severe coronavirus outbreak, but supply will be impacted as a result of coronavirus-related absenteeism within the health and social care workforce. NHS England estimates that in the event of a worst-case scenario the absenteeism rate could be as high as 30% for healthcare workers. In this situation, many essential health and social care services may cease with detrimental impacts on those that need them most.
Whilst volunteers are factored into local contingency plans, ensuring maximum resilience across the health and social care systems at the point of maximum pressure in a severe coronavirus outbreak is a priority. That is why this clause enables appropriate authorities to maximise the pool of volunteers that they can draw on to fill capacity gaps by addressing two primary deterrents to participation: risk to employment and employment rights, and loss of income.
The clause, therefore, creates a temporary new form of statutory unpaid leave for employees and workers who wish to volunteer – Emergency Volunteering Leave. The clause also includes certain rights and protections for employees and workers who take Emergency Volunteering Leave, including, for example, the maintenance of terms and conditions of employment during any period of leave and protection from detriment for taking the leave. The clause also provides an obligation on the Secretary of State for Health and Social Care to establish a compensation scheme to compensate eligible volunteers for some loss of income and expenses incurred.
Other policy options considered?
Local areas could acquire additional volunteers at critical moments to support local relief efforts through informal arrangements between employees and workers and their employers. However, this relies upon employers implementing their own special leave arrangements and would allow for significant discretion on the part of the employer regarding the length of time these arrangements are in place for and the employment protections they afford to their employees and workers during this period. This would result in inconsistencies with some volunteers receiving better arrangements, benefits and protections than others doing similar roles.
Key considerations
Incentivising volunteers – in the event of a severe outbreak of coronavirus in the UK, existing health and social care services and workforces will be placed under significant pressure. Ensuring effective resilience across the health and social care system is critical. This measure will help to increase the available pool of volunteers that are available to support the delivery of essential non-coronavirus services upon which a large number of vulnerable citizens rely.
Impact on business/services – the introduction of a new temporary form of unpaid statutory leave will impact employers and businesses at a time when the overall economy will be hit hard by reductions in productivity and disrupted supply chains. This has been taken into consideration and to mitigate this the measure limits the total consecutive amount of Emergency Volunteering Leave an individual can take to 4 weeks in any volunteering period of 16 weeks. The measure also provides exemptions for micro businesses (those with 10 or fewer employees), civil servants, the military, police and parliamentary and commission staff; there is also a power to make regulations to add to the list exemptions.
Impact on Local Authorities – the policy requires LAs across the UK to identify volunteer social care opportunities and to match these opportunities to volunteers coming forward. This may add additional burdens to the work that LAs are doing in response to the outbreak. HM Government will provide detailed guidance for LAs to follow and will design a simple system in collaboration with them that is easy to administer. Additional funding may also be required.
Guidance and communication – clear guidance and effective communication of this measure will be critical to its success. Individuals will need to know what roles they will be expected to do and how local authorities and health systems will deploy them. In cases where they are employed, volunteers will need to know how to notify their employer and be made aware of the employment protections they will receive in respect of the leave. Guidance will be drafted for local authorities and national health services, employers and individuals that sets out the purpose of the measure, its implementation and application.
Compensation Scheme – compensating individuals for some loss of income and expenses is an important factor in ensuring that enough volunteers come forward. Maximising success will be aided by identifying and agreeing an appropriate rate of compensation and a simple means for individuals to claim.
Indemnity – volunteers will be involved in activities where there may be risks to themselves and others. Volunteers will only be placed in a volunteering activity where appropriate indemnity arrangements are in place.
Mental health and mental capacity
Rationale for intervention
During a severe coronavirus outbreak, it is anticipated that there will be a surge in demand for healthcare services, including mental health services. There will also likely be higher staff absence rates than usual, particularly during the peak weeks. It is thought likely that organisations will find it very difficult to comply with a number of procedural requirements set out in the Mental Health Act 1983. The consequences of this would include meaning that patients needing mental health treatment in an inpatient setting would be less likely to receive it, particularly in those cases where a person is so unwell he or she is not able or willing to consent formally to treatment. It would also mean that people would have to wait for an extended period before receiving mental health assessments, and be unwell and untreated for longer. These waits would include those for assessments following detentions made by the police under the Act, which would be a burden on police time, and could result in an increase of the number of people being assessed within police stations.
In order to support these services and give them the flexibility they will need to continue treating patients during a severe coronavirus outbreak, a number of temporary amendments to the Mental Health Act 1983 are proposed. These include allowing fewer health care professionals needed to undertake certain functions; and extension or removal of time limits relating to detention and transfer of patients.
In practice, the amendments would mean that an approved mental health professional may decide to detain a person on the advice of one doctor approved under section 12 of the Act. The Act requires the advice of two doctors, the second having acquaintance with the patient.
Patients who are being treated without their consent have the right, after three months, to have their treatment reviewed by a Second Opinion Appointed Doctor, a service provided by the Care Quality Commission. To reduce the impact on resources at the end of the emergency period and avoid a peak in demand on to fulfil this right, an amendment sets out that the three month period will commence from the end of the emergency period.
For prisoners, an amendment would help to ensure that defendants and prisoners with a mental health condition can be admitted to hospital for treatment during a time of staff shortages and disruption to services. The flexibilities will change the number of doctors’ opinions and time limits required for detention and movement between court, prison and hospital.
Other policy options considered?
Mental Health Trusts are expected to plan for and respond to emergency and business continuity incidents in the same way as other category 1 responders. This includes planning for a coronavirus outbreak. There is specific guidance available to the NHS and Social Care, including Mental Health providers, to support the development of plans to deal with increased demand and staff absence.
As such, there is a ‘do nothing’ option regarding legislation. This was not seen as the preferred option as we are likely to see higher staff absence during the peak weeks of the coronavirus outbreak for most organisations. This will compound the impact of the increase in demand for health care services, including mental health services.
The Government also considered changing the requirements around Community Treatment Orders, to temporarily reduce the number of professionals approved under Act to make them, in order to facilitate release from hospital settings. This measure would not affect the primary issue, of ensuring that people in need, particularly those who are not consenting, get access to mental health treatment of a type that requires their detention in psychiatric hospital.
Key considerations
Under the NHS Act 2006, the Secretary of State has a duty, and under the NHS (Wales) Act 2006, the Welsh Minister has a duty to promote a comprehensive health service. This measure will ensure a reduced likelihood of a patient who requires treatment not receiving it whilst also ensuring that clinicians are provided with lawful flexibility they will need to continue to treat patients with significant staff shortages and increased strain on the health service.
These measures do decrease the immediate safeguards around these processes; however this is balanced with the interest of patients being able to access treatment if needed.
Clear communication of these amendments and how they should impact on provision will be key to their successful implementation. There is likely to be local variation in the impact of the coronavirus outbreak across the country and a clear understanding of when to utilise these flexibilities will be important.
Changes to Scottish Mental Health Legislation
Rationale for intervention
During a coronavirus outbreak, it is anticipated that there will be a surge in demand for healthcare services, including mental health services. There will also likely be higher staff absence rates than usual, particularly during the peak weeks. It is thought likely that organisations will find it very difficult to comply with a number of procedural requirements set out in the Mental Health (Care and Treatment) Scotland Act 2003, the Criminal Procedure (Scotland) Act 1995 and related subordinate legislation. Mental health legislation provides various procedural safeguards in relation to the care and treatment of mentally disordered persons. These safeguards include strict limitations on who can apply for detention for assessment and treatment of mentally disordered persons.
The consequences of this may mean that patients needing mental health treatment in an inpatient setting would be less likely to receive it, particularly in those cases where a person is so unwell he or she is not able or willing to consent formally to treatment. It would also mean that people would have to wait for an extended period before receiving mental health assessments, and be unwell and untreated for longer.
In order to support these services and give them the flexibility they will need to continue treating patients during a coronavirus outbreak, a number of temporary amendments to the Mental Health (Care and Treatment) Scotland Act 2003, the Criminal Procedure (Scotland) Act 1995 and related subordinate legislation are proposed. These include, amongst others, where the assent of two medical practitioners is required, or the assent of one medical practitioner and a mental health officer, this is reduced to a requirement for one medical practitioner in circumstances where seeking the assent of two would be impractical or result in undesirable delay; the extension of the duration of certain orders; and the extension of timescales for the assessment of those involved in criminal proceedings.
Other policy options considered?
Health Boards in Scotland are expected to plan for and respond to emergency and business continuity incidents in the same way as other category 1 responders. This includes planning for civil emergencies. There is specific guidance available to Health Boards and Local Authorities, to support the development of plans to deal with increased demand and staff absence. These include ‘Preparing Scotland – Scottish Guidance on Resilience’ and detailed guidance on ‘Care for people affected by emergencies’.
The policy position is that the proposed changes should work alongside the original provisions in mental health legislation, providing flexibility where needed but not mandating their use. Persons acting during the time of the time of the emergency legislation should consider first if the normal processes under the 2003 Act or 1995 Act and associated legislation can be adhered to before using the emergency provisions. Use of the temporary modifications should be used only as an option of last resort, as such there is a ‘do nothing’ option regarding legislation.
Place of safety orders can be used by the police under section 297 of the 2003 Act when they find someone in a public place who they believe may have a mental disorder and is in immediate need of care and treatment. The individual can be taken to, and detained in a, a place of safety for up to 24 hours in order to be assessed by a medical practitioner. Consideration was given to extending the period from 24 to 48 hours. However, on balance, stakeholders felt that keeping people in a place of safety was not desirable and should be limited as far as possible. Therefore, these provisions were not instructed.
At the end of the emergency period, consideration was given to whether any order made on the evidence or advice of one medical practitioner (where the usual requirement was two) should be subject to review by the tribunal or relevant court. This review could allow consideration of whether a new order should be made. After a specified period of time, these orders would then cease to have effect. This provision was popular with stakeholders who felt that it provided additional support for patient rights, however, in practical terms it would place an additional administrative burden on services when they are trying to recover following a period of significant disruption. A general provision to review orders would remain in place and no person should continue to be detained who does not meet the criteria set out in the 2003 Act. The principles of the 2003 Act should also be taken into account throughout an individual’s care and treatment and these include use of least restrictive alternative and benefit to the person. Therefore, these provisions were not instructed.
Key considerations
Under the NHS (Scotland) Act 1978, the Secretary of State has a duty to promote a comprehensive and integrated health service, and Scottish Ministers have a separate duty to promote improvement of the physical and mental health of the people of Scotland. The proposed measures are intended to reduce the likelihood of a patient who requires treatment not receiving it whilst also ensuring that clinicians are provided with the lawful flexibility they may need to continue to treat patients during a period of significant staff shortages and increased strain on public bodies across Scotland. It would also support the autonomy of clinicians working within the health service by increasing their individual responsibilities.
The proposed changes to Scottish mental health legislation need careful presentation to ensure that they are viewed as a proportionate response in the event of a shortage of healthcare staff and other professionals required to meet the criteria for assessment, detention and treatment of individuals under the mental health legislation. The changes will enable individuals to continue to be assessed, treated and cared for in a way which respects their rights and retains adequate safeguards. However, there may be some concern that the changes allow for a greater infringement of an individual’s human rights, beyond that of the current legislation, such as increasing timescales for detention in some cases as the measures decrease immediate safeguards around these processes.
This should be balanced with the interest of patients being able to access timely care and support if needed. The competing rights of Articles 2,4, 5 and 8 of ECHR are particularly relevant. Article 2 rights (the right to life) must be prioritised in an emergency situation, for a limited time, meaning that safeguards protecting other rights may be temporarily reduced or limited. It should be made clear that compliance with the original legislation continues to be the default process unless it is not practically possible to do so, minimising the risk of an increased infringement of an individual’s rights. In addition, all public bodies in Scotland must continue to act in a way which respects ECHR rights and all legislation must be interpreted, in so far as is possible, in a way that is compatible with ECHR rights.
Clear communication of these amendments and how they should impact on provision will be crucial to their successful implementation. In any event, there is likely to be significant local variation in the impact of the emergency period across the country and a clear understanding of how and when to utilise these temporary flexibilities will be important.
Mental health and mental capacity (Northern Ireland)
Temporary modifications to Mental Capacity Act (Northern Ireland) 2016. The Act provides a statutory framework for deprivation of liberty of persons over 16 who lack capacity. The modifications amend the Act to:
- allow a relevant social worker rather than an approved social worker to provide consultation
- allow the trust panel to work remotely
- extend various time limits
Rationale for intervention
Without modifications it may be impossible for the HSC to comply with the statutory requirements for deprivation of liberty, thus increasing the risk of harm to persons or others. It would also expose HSC workers to the risk of not being protected from liability when carrying out acts amounting to deprivations of liberty.
Other policy options considered
The other option would be not to comply with the statutory framework.
Timing of when the clause will be needed (weeks from peak)
The modifications would be required if and when 20% of the workforce were unavailable.
How would clause be operationalised and time taken?
Commencement would be by Commencement Order by the Department of Health. A Code of Practice is prepared and will be shared with HSC Trusts.
Anticipated public reaction/controversy
Reducing the protections for persons deprived of liberty always carries the risk of negative reaction. However, considering the current position, it is not unlikely that the public reaction will be mostly positive. The move is widely supported across the HSC.
Special considerations for DAs
Devolved issue which require LCM.
Spending implications
None.
Health service indemnification
A coronavirus outbreak would bring about a significant increase in demand for healthcare services. We would also expect that, owing to staff members being diagnosed with coronavirus, fewer staff will be available in healthcare organisations to provide healthcare services. Therefore, when responding to a coronavirus outbreak, we expect this to have a serious and negative impact on the capacity of the NHS to manage any increase in the demand for healthcare services and to provide continuity in the provision of routinely provided NHS services.
Staff members who are not diagnosed as having coronavirus disease or suspected, or at risk, of having the disease will be required to assist in dealing with the response to the coronavirus outbreak and may, in some instances, be asked to undertake NHS activities that are not part of their normal day-to-day work. It may also be necessary to require medical students to assist in the delivery of some NHS services, although due consideration as to competence and supervision will feature as part of any assessment on whether this course of action is practical and effective. Medical practitioners and other healthcare workers from a range of disciplines and settings are likely to be required to help deal with a coronavirus outbreak. For example, dentists and GP practice nurses may be asked to assist staff in NHS hospitals in administering injections and medication that would normally only be administered by hospital medics.
Additional requests may be made of staff in relation to the services they provide in response to a coronavirus outbreak. We expect that this might include the temporary alteration of some practices to enable effective healthcare to continue to be administered across the wider sector. We expect that such changes to the normal, routine practices of healthcare professionals would only persist for the duration of the response.
This indemnity clause allows the Secretary of State for Health and Social Care (in relation to the NHS for England) and the Welsh Ministers (in relation to the NHS for Wales) to provide indemnity for clinical negligence liabilities of healthcare professionals and others arising from NHS activities carried out as part of the response to a coronavirus outbreak. Alternatively, the clause allows the Secretary of State or the Welsh Ministers to arrange for such indemnity to be provided by a person authorised by the Secretary of State or the Welsh Ministers. This indemnity will not apply to those already covered by state-backed schemes (the Clinical Negligence Scheme for Trusts (CNST) or the Clinical Negligence Scheme for General Practice (CNSGP) in England and the Welsh Risk Pool (WRP) or the Scheme for General Medical Practice Indemnity (GMPI) in Wales). It will also not cover healthcare professionals who have indemnity cover for the clinical negligence in question through a private Medical Defence Organisation (MDO), a professional body or where they have commercial insurance. There are similar provisions for Scotland and Northern Ireland.
The intention behind this clause is to ensure that, in the exceptional circumstances that might arise in a coronavirus outbreak, sufficient indemnity arrangements are in place to cover all NHS activities required to respond to the outbreak. The clause will provide indemnity for clinical negligence liabilities arising from NHS activities connected to the diagnosis, care and treatment of those who have been diagnosed as having coronavirus disease or who are suspected, or who are at risk, of having the disease. It will also cover healthcare professionals and others providing NHS business-as-usual activities (connected to the diagnosis, care or treatment of a patient) that a person is asked to carry out in consequence of the outbreak, including where such activities are outside the scope of their usual day-to-day practices. Cover under the indemnity clause will only apply, however, where such activities fall outside the scope of pre-existing indemnity cover arrangements (both in the state-backed schemes and privately provided cover).
Other policy options considered?
Existing powers under the NHS Act 2006 were reviewed in order to determine whether they might be sufficient to provide indemnity in a coronavirus outbreak to cover any gaps in existing indemnity arrangements. This included section 71 of the NHS Act 2006 in England and section 30 of the NHS (Wales) Act 2006 in Wales, under which regulations establishing state indemnity schemes (or extending the scope of existing schemes) can be made.
The coverage provided under the existing CNST, CNSGP, WRP and GMPI is likely to be sufficient in the majority of cases in the situations outlined above, namely where additional activities are required to be carried out by healthcare professionals and amended procedures for delivering NHS services are in place. This, however, is only the case where the NHS activities in question are carried out on behalf of an NHS trust or for a GP practice. There may, therefore, be the potential for gaps in such cover to arise if other measures are adopted in responding to a coronavirus outbreak. The option to amend the regulations for the CNST or, under the same regulation-making powers, to make regulations establishing a separate scheme to close any gaps in the indemnity cover required to respond to a coronavirus outbreak was considered. Similarly, the option to extend the coverage provided under the CNSGP to cover not only GPs and others providing GP services but also community dentists, pharmacists, nurses, etc. who might be called upon to assist in a coronavirus outbreak was also considered.
Other indemnity arrangements which are provided to medical practitioners and healthcare workers by medical defence organisations (MDOs), professional membership bodies and commercial insurers were reviewed. In theory, arrangements could be made with MDOs and other insurance providers to provide extended cover to their members if they were to take on extra clinical activities during a coronavirus outbreak.
However, the proposed option was preferred as it complements existing indemnity arrangements – in essence by covering any gaps in indemnity provision only where adequate cover is not otherwise provided for the relevant NHS activities carried out by healthcare workers and others for the purposes of responding to a coronavirus outbreak. The other options would require some time to make changes or agree arrangements, which will not work in a coronavirus outbreak where it will be essential to respond as soon as possible.
Key considerations
There may be a substantial cost associated with this provision; however, the exact number of healthcare professionals and other persons that the indemnity might cover is dependent on the severity of the outbreak, the availability of healthcare professionals and the extent of the current indemnity arrangements that are in place. The number of potential claims and the cost of successful cases are very difficult to quantify given this uncertainty. That said, the existing state-backed schemes are designed in such a way as to provide cover for all NHS healthcare services provided for an NHS trust or for a GP practice. As such, we would expect the vast majority of persons carrying out activities in connection with the provision of NHS services as a consequence of a coronavirus outbreak to have sufficient clinical negligence indemnity cover in place under the pre-existing state-backed schemes, reducing any reliance on the ‘safety net’ provisions created by this clause.
NHS and local authority care and support
This summary of impacts covers three provisions:
- Provision that in a coronavirus outbreak a Local Authority (LA) may lawfully prioritise who and what type of needs it will meet, rather than being required to meet all eligible assessed needs as specified under the Care Act 2014 (as at present).
- Provision that in a coronavirus outbreak LAs may lawfully determine whether and the extent to which it will carry out assessments of individuals’ needs or review care plans, or carry out financial assessments, rather than being required to carry these out in all cases required by the Care Act 2014 as at present.
- Provision for the Secretary of State for Health and Social Care to direct LAs in relation to the prioritisation of services to meet care and support needs in accordance with guidance issued by the Department of Health and Social Care.
Rationale for intervention
The Care Act imposes very explicit duties on Local Authorities (Las) to: carry out an assessment of the needs of anyone who appears to require care and support; involve the individual in the process; provide an advocate if needed; consider their eligibility for state funded care and support; provide a care and support plan; meet the individual’s eligible needs if they are entitled to this support. These duties ensure that LAs provide support to some of the most vulnerable people in society. We expect LAs, working with providers, to do everything possible to maintain services over the coming period.
However, during the peak, adult social care services will face surging demand and reduced capacity arising from higher rates of staff absence. This may make it impossible for LAs to continue to deliver at current service levels, or undertake the detailed assessments they would usually provide.
In such circumstances it is crucial that LAs should be able to prioritise care in order to protect life and reach rapid decisions over the provision of care without undertaking full Care Act compliant assessments.
These provisions, which would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak, would allow LAs to do this by temporarily releasing them from some of their duties under the Care Act 2014. Specifically, an LA would be permitted to lawfully prioritise whose and what type of needs it will meet, rather than being required to meet all eligible assessed needs as specified under the Care Act 2014, and will not be required to carry out assessments of individuals’ needs or review care plans.
Without these provisions, LAs would be constrained by existing assessments, which could result in them maintaining these at the expense of new, more urgent needs, or prevent them from allocating scarce support purely on the basis of severity of need. Such decisions could be inhibited by the fear of legal challenge under the Care Act or, once taken, could become subject to such challenge, consuming resources at a critical time. Concerns around legal challenge could cause LAs to delay the prioritisation process beyond the point of viability, resulting in poor decision making and worse outcomes than if they were given the legal space to take strategic decisions around prioritisation.
These provisions would also provide Secretary of State with a power to direct LAs to comply with Government guidance regarding the principles they should follow when prioritising care. These prioritisation decisions are complex and it is important that Local Authorities are able to use their expertise and knowledge of individuals’ needs to make the right decision in each situation. However, Government guidance, and the power to direct LAs to follow this, will ensure that these decisions are underpinned by consistent principles.
These changes to the Care Act 2014 would only be triggered if the spread of coronavirus was such that the Secretary of State considered LAs to be at imminent risk of failing to fulfil their duties under the Care Act 2014 and would be deactivated at the conclusion of the emergency period. Even during the operation of these changes, LAs would still be expected to continue meeting all of their duties under the Act if they are able to do so. It would though allow them to prioritise the provision of services if needed, including requiring them to meet needs in order to prevent individuals’ human rights being breached.
Other policy options considered?
An alternative option we considered was to provide no easements for LAs and accept that they could face legal challenge after the fact if they struggled to meet assessed needs during the coronavirus outbreak. Maintaining the status quo in terms of LA duties could be seen as providing encouragement to LAs to continue providing all services for as long as possible. However, this approach could risk LAs attempting to continue to provide all services beyond the point at which this is feasible. This in turn risks LAs making inconsistent or inadequately considered decisions as a result of lacking the opportunity to strategically prioritise.
Key considerations
As noted above, these clauses should not in themselves cause LAs to reduce their adult social care offer as (at the point of triggering) this would be an imminent risk regardless of any legislative easements made by the government. However, the policy intent of these clauses is to give LAs cover to make this reduction in the most planned, prioritised way possible, and the impacts of this intent are therefore a key consideration.
In this light, the triggering of these clauses is key; triggering too soon could introduce unnecessary risk by removing protections before this is appropriate while triggering too late could delay LAs undertaking strategic prioritisation and making poor decisions around the optimal management of reduced resources. The Secretary of State’s triggering of these clauses will therefore be based on clinical and medical advice regarding the progress of the coronavirus outbreak.
If triggered, these clauses could result in individuals not receiving support for some needs where LAs judge that resources need to be focused on meeting the most acute and pressing needs. This could also have secondary impacts on the family members or carers of individuals with needs or the local community, to whom LAs might have to look to provide temporary support. It is worth noting, however, that in these extreme circumstances these impacts would transpire regardless of the introduction of these clauses and that the intent of these clauses is to allow LAs to mitigate the negative impacts of necessary prioritisation as far as possible.
Pensions
This Clause suspends the operation of the following Regulations in the NHS Pension Scheme:
NHS Pension Scheme Regulations 1995
- Regulation S1
- Regulation S2(1A)(c)
NHS Pension Scheme Regulations 2008
- Regulation 2.D.6(2)(a)
- Regulation 3.D.6(2)(a)
NHS Pension Scheme Regulations 2015
- Regulation 86(3)
Rationale for intervention
The aim of suspending the above regulations is to remove barriers which would prevent otherwise able retired members from returning to work while continuing to receive their pension. These rules predominantly affect members of the 1995 Scheme, although a smaller number of members could be affected by draw down abatement in the 2008 Section and the 2015 Scheme. Members of the 1995 Scheme are affected by the 16-hour rule and special class holders are abated if they return to work in receipt of their benefits before age 60.
16 Hour Rule: Members of the 1995 Section must take a 24-Hour break before returning to employment after retirement. This break can take place over a weekend meaning members could retire on Friday and return to work on Monday. However, a pension will be suspended if the member returns to work and commits to more than 16 hours per week within the first four weeks. This follows the expectation at the time the 1995 Section was introduced that members would retire at age 60 and either not return to work or return on limited hours.
Suspension of this rule by means of the Coronavirus Bill would allow staff to return immediately after retirement and continue their existing working commitments, or increase them, whilst they are in receipt of their full pension benefits. This would remove the financial disincentive of members having their pension benefits suspended if they return immediately to a working pattern in excess of 16 hours per week following retirement.
Abatement of Special Class: The Normal Pension Age (NPA) for members of the 1995 Section of the NHS Pension Scheme is 60. However, certain members such as nurses and mental health officers hold ‘special class status’ if they were in post on or before 6 March 1995. This allows such members to access their pension benefits at age 55, earlier than the normal pension age of 60, without the actuarial reduction that would normally apply if benefits are claimed early.
Special class status dates back to the start of the NHS in 1948 and recognised the physically arduous nature of nursing and certain other types of care. It assumed that members working under these conditions would not be able to continue working until the normal pension age of 60. Advances in care methods over time have meant that the rationale for special class status has become outdated, and it was withdrawn for new entrants from 6 March 1995 as part of NHS Pension Scheme restructuring at that time.
If a special class holder returns to work before age 60, their pension benefits will be abated if their post-retirement pay plus pension exceeds their pre-retirement income. This protects the public purse from the member receiving an enhanced pension from age 55 and continuing to draw their pre-retirement salary.
This clause suspends the abatement provisions that apply to special class holders. This will remove a barrier which currently prevents special class nurses aged 55-60 who have claimed their pension benefits from returning to work without having their pension suspended. The abatement rules also apply to persons who have retired on ill health grounds or in the interests of the efficiency of the service (IES), along with a limited class of persons who have retired on redundancy grounds. The abatement rules that apply to these groups have not been suspended.
Draw Down: Members of the 2008 Section and 2015 Scheme have access to increased retirement flexibilities, including the ability to ‘draw down’ a portion of their pension. From the age of 55, members can elect to draw down between 20% and 80% of their pension whilst continuing to work. Members also have the option to build further pension after drawing down, until they complete 45 calendar years of service (2008 Section) or they reach age 75.
Abatement does not apply in this scenario in the same way as it does for special class members of the 1995 Scheme, although members must reduce their pensionable pay by at least 10% in order to draw down. This is usually achieved by a member reducing their working commitments or stepping down to a role with a lower salary.
Suspending the requirement for staff to reduce their pensionable pay by 10% will allow staff who elect to draw down to continue with their existing work commitments and increase them if they wish to do so.
Provision of vaccines by Health Boards: Scotland
This clause restricts the provision of vaccines by Health Boards to General Practitioners and persons under their direction or control. We would look to revise to allow vaccinations by other health care professionals during the duration of the crisis.
Rationale for intervention
The clause is restrictive during a crisis and prevents Health Boards arranging vaccination by other healthcare professionals.
Other policy options considered
Patient Group Directives – these can only be authorised by Scottish Ministers and cannot be required.
Timing of when the clause will be needed in coronavirus outbreak (weeks from peak)
As soon as a vaccine is available.
How would clause be operationalised and time taken?
Health Boards will be made aware of the clause as soon as it is revised. They will be advised to prepare accordingly. Scottish Ministers would issue directions to Health Boards instructing them to put their plans into action as soon as a vaccine was confirmed.
Anticipated public reaction/controversy
We would anticipate the public would welcome this development. There would be a minor risk of controversy as to why revision was required in the first place.
Special considerations for DAs
This is devolved.
Spending implications
Slight – we would not anticipate other healthcare professionals costing more than general practitioners to supply a vaccine per patient, although with more professionals involved we could assume more patients would be vaccinated and thus a greater spend on vaccines.
Delivery of vaccinations by alternative providers: Scotland
Rationale for intervention
Clause 40 – National Health Service (Scotland) Act 1978 restricts the provision of vaccines by Health Boards to General Practitioners and persons under their direction or control. The clause is restrictive during a crisis and prevents Scottish Health Boards arranging vaccination by other healthcare professionals.
Revising the clause to allow vaccinations by other health care professionals would allow Scottish Health Boards to make best use of locally available resources.
Other policy options considered
The default option for vaccination in Scotland would be by GMS contractors i.e. GP practices. However their capacity during a crisis may be reduced. Scottish Government has considered whether Patient Group Directives would be sufficient. However, these can only be authorised by Scottish Ministers and cannot be required.
Protection of public health: Scotland
These provisions enable Scottish Ministers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland (whether from risks originating there or elsewhere).
Rationale for intervention
These Regulations will ensure Scottish Ministers have the same powers to make Regulations about managing infectious diseases as apply in the rest of the UK. This includes the ability to make Regulations quickly in an emergency. Whilst the powers in the Bill provide tools for responding to an outbreak, the Regulation-making power will allow Scottish Ministers to make Regulations should it become necessary to make further provision.
Other policy options considered
Taking new primary legislation through the Scottish Parliament.
Timing of when the clause will be needed in coronavirus outbreak (weeks from peak)
Whilst it is not expected that the power would be used straight away, it may be necessary to make emergency Regulations quickly to respond to an unforeseen situation so the power itself needs to be in place immediately.
How would clause be operationalised and time taken?
The clause will come into force on Royal Assent, but Regulations will only be made under the clause if and when it appears necessary to do so. This could be some weeks after the UK Bill receives Royal Ascent, or soon after.
Anticipated public reaction/controversy
The regulation-making power itself is likely to be uncontroversial. The level of controversy over any Regulations ultimately made will depend on their content. Introducing powers and restrictions that could affect public freedoms and liberties is likely to attract significant media attention.
Special considerations for DAs
Health is a devolved matter.
Spending implications
Not explored, however, the proposed clauses provide for regulation making powers and so financial implications are unlikely. The implications would need considered at the point Regulations are made.
Protection of public health: Northern Ireland
The Secretary of State for Health made The Health Protection (Coronavirus) Regulations 2020. The Regulations only apply to England. In particular, the 2020 Regulations allow for further restrictions and requirements relating to the isolation of persons suspected to be infected with coronavirus and for the detention of persons in isolation where that is deemed to be necessary.
This Clause will allow the Department to make regulations for additional measures to be introduced to help delay or prevent further transmission of an infectious agent which constitutes a serious imminent threat to public health.
Rationale for intervention
NI currently has no legislative equivalent to the main provisions of Part 2A of the Public Health (Control of Disease) Act 1984 or the provisions of The Health Protection (Coronavirus) Regulations 2020. Clauses required to provide public health protection against infectious disease which is broadly equivalent to that available in the rest of the UK and in the quickest possible time given the current level of threat.
Other policy options considered
Taking new primary legislation through the NI Assembly.
Making coronavirus a notifiable disease under the Public Health Act (NI) 1967 to provide some limited powers.
Timing of when the clause will be needed in outbreak (weeks from peak)
It is hoped to have regulations drafted to be introduced to the NI Assembly as soon as the UK Bill receives Royal Assent.
How would clause be operationalised and time taken?
Powers would become available once the regulations are made. This could be some weeks after the UK Bill receives Royal Assent.
Anticipated public reaction/controversy
Introducing powers and restrictions that could affect public freedoms and liberties is likely to attract significant media attention.
Special considerations for DAs
Health is a devolved matter.
Spending implications
Not explored, however, the proposed clauses provide for regulation making powers and so financial implications are unlikely.