Private healthcare sector risk exposure changes due to COVID-19

The private healthcare sector in the UK is increasingly working closely with the National Health Service (NHS) to offer support in the treatment of coronavirus patients or to care for other patients, raising a number of liability issues that need to be addressed.

NHS England has struck a deal with independent hospitals to expand hospital capacity to address the coronavirus outbreak. 

The deal will enable 20,000 fully qualified staff to join the NHS response to the pandemic, helping manage the expected surge in cases. The extra resources secured by the health service will also help the NHS deliver other urgent operations and cancer treatments. The arrangement includes the provision of 8,000 hospital beds across England, nearly 1,200 more ventilators, more than 10,000 nurses, over 700 doctors and over 8,000 other clinical staff. As part of this agreement, private hospitals will be reimbursed, at cost – meaning no profit will be made for doing so.

The effect on insurance protection

Some of the private hospitals participating in the scheme may already cooperate with the NHS and be covered for clinical negligence claims by the Clinical Negligence Scheme for Trusts (CNST). 

However, organisations participating in the deal with the NHS may need to consider their Employers’ Liability and Public Liability (EL/PL) exposures for the possibility that the deal affects other patients/visitors/staff. It is likely that patients in both the private sector and NHS will be affected by delays to non-urgent, in-patient, elective surgery.

Private organisations participating in the deal may also want to revisit their Directors & Officers (D&O) protection since their risk exposure is likely to change due to the closer cooperation with the NHS. Investors might be affected by a reduction in revenue due to the new arrangement or patients may be reluctant to return to the institution when services are back to normal. 

Private hospital consultants are also being asked to work in the NHS. In doing so, they will no longer earn private fees which may reduce their income. While working for the NHS, consultants will need to continue paying the indemnity cover for their “claims-made” policies. These policies provide coverage that is triggered when a claim is made against the insured during the policy period, regardless of when the wrongful act that gave rise to the claim took place. Most medical errors and omissions (E&O), directors and officers (D&O), and employment practices liability insurance (EPLI) are written as claims-made policies.

The UK’s Coronavirus Act 2020 introduces indemnity cover to those who provide additional support in dealing with patients who have, or who are suspected of having, COVID-19. It also covers the staff brought in to cover ‘business-as-usual’ activities, and, crucially, where such activity may be outside the scope of their normal duties. This cover is in addition to CNST cover (and so it does not apply where cover is already provided by CNST or CNSGP (Clinical negligence Scheme for General Practice).

It is worth mentioning that the Bill only provides cover for medical negligence, but does not appear to legislate for regulatory or disciplinary hearings arising as a result of any care provided. 
Medical staff participating in the NHS deal should therefore maintain their cover for legal expenses relating to regulatory and disciplinary issues, and, in some, cases, inquests.

Staying compliant with regulation

To prepare for any regulatory proceedings, companies should evaluate their staff’s abilities and provide appropriate supervision wherever possible as they take over new tasks and potentially new roles. 

Healthcare professional regulators, including the General Medical Council (GMC), have already committed to take into account factors relevant to the environment in which medical staff are working, including relevant information about resources, guidelines or protocols in place at the time. However, companies and their management are still duty bound to remain cognisant of any GMC updates and follow any guidance provided or directives given on a real time basis.

Staff performing NHS activities should work within the limits of your competence as far as it is practical in the circumstances. In respect of the coronavirus specifically, the GMC reiterated that patients must not be exposed to unnecessary risk, and that doctors are expected to behave responsibly and reasonably. It recognises at the same time, however, that difficult decisions may need to be made quickly regarding the safest and best course of action at any given time.

 According to the GMC, doctors should consider the following factors when performing COVID-19-related tasks:

•    Their knowledge and skills
•    Options for support from other clinicians, working collaboratively across the healthcare team
•    The best option for the individual patient given available options
•    The protection and needs of all patients they have a responsibility towards
•    Minimising the risk of transmission and protecting their own health

It is likely to become difficult to only stick to one’s individual knowledge and skills area in case of emergency. The Chief Medical Officers have informed the healthcare community that practices and hospitals will need to support staff in order to enable them to use their skills in such difficult circumstances and to allow them to depart from established procedures in order to care for patients where required.

If the government issues a directive for you to work outside your scope of practice and such activities are considered private practice work, you should contact Lockton as soon as possible and provide a brief summary of what you are doing and where. 

Insurers are usually happy to consider providing coverage for these activities following an assessment of the exposure. Where this work is being carried out in the NHS, there is no need to inform Lockton as the policy will not provide cover for this work (in accordance with cover provided by the State / Government directives) other than for the provision of defence costs and legal expenses available for any disciplinary matters arising.

Volunteering for the NHS

Following a request by the UK government, the GMC is temporarily registering doctors to help the NHS respond to the coronavirus pandemic.

These are doctors who:

• left the register or gave up their licence to practise within the last three years
• have a UK address 
• and don’t have any outstanding complaints, sanctions or conditions on their practice. 

According to the GMC, doctors who have temporary registration during the emergency will not be required to pay any registration fee to the GMC, and will not be subject to revalidation – the process by which doctors demonstrate, every five years, that they remain up-to-date and fit to practise.

The GMC also expects there will be increasing requirements for trainees and trainers to support NHS Healthcare providers in managing the care of acutely ill patients. Flexible working by healthcare professionals, including doctors in training, to support patient and population needs in a significant outbreak will be essential, but it will be imperative that this is considered in the context of patient and trainee safety.

Guidance principles for all trainees:

• Trainees must not be asked to undertake any activity beyond their level of competence and must be advised they should seek senior workplace guidance if that arises.
• The relevant postgraduate dean should be informed of plans to redeploy trainees of any grade.
• Trainees deployed to a different clinical area must have appropriate induction and be informed of who they are reporting to, and who is providing supervision with details of how to contact them.

Arrangements for redeployed trainees should be reviewed weekly and updates provided to the relevant Postgraduate Dean on a weekly basis to ensure that trainees are adequately supervised in the host environment / specialty, and that they continue to work within the limits of their competence appropriate to their stage of training.

Where training is interrupted or learning outcomes are not achieved due to a major incident response, these issues will be taken into account at the trainee’s next Annual Review of Competence Progression (ARCP) which will inform future training requirements and placement planning.

Current recruitment and selection processes are continuing and guidance for candidates will be updated regularly.

A joint statement by the UK Health Departments, the GMC, the Medical Schools Council and others informs that there will be early provisional registration of final year medical students, once they have graduated and early full registration of suitable foundation year 1 (FY1) doctors.

Key principles in deploying medical students and FY1 doctors:

• Graduates and doctors will decide if they wish to contribute in this way and opt in.
• The safety of these doctors will be paramount. They should be given induction, provided with full necessary personal protection equipment and the training to use it, appropriately supervised, and not asked to work beyond their competence.
• Employers working with medical schools and Statutory Education Bodies will determine how these individuals can best be deployed to support frontline colleagues.

For further information, please contact: 

Tom Hester, Senior Vice President
Tel: +44 (0)207 933 2206


Kevin Culliney, Partner
Tel: +44 (0)20 7933 2692

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