Mills & Reeve: Health and Care Update

Another iteration of the Caldicott Principles coming down the track. Could this help with future local lockdowns?

The launch of this consultation is timely. Leicester is set to see an extended lockdown to contain the spread of the virus. But could this have been better managed? Reports in the FT suggest that a delay in sharing Covid-19 test data delayed the city’s response.

The National Data Guardian for Health and Social Care seeks views on its consultation on revising and expanding the Caldicott Principles

Every NHS organisation has had to have a Caldicott Guardian since 1998 and every local authority with adult social care responsibilities has been required to do so since 2002. Originally six good practice principles were recommended for use of confidential information in the NHS but a review in 2013 introduced a new principle to encourage good information sharing in the best interests of patients and between the health and social care sectors – this being: “The duty to share information can be as important as the duty to protect patient confidentiality.”

The NDG’s role was placed on a statutory footing in 2018 when the Health and Social Care (National Data Guardian) Act was passed granting them power to issue official guidance about the processing of health and adult social care data in England. Dame Fiona Caldicott, who had held the non-statutory NDG role since 2014 became the first statutory post holder in April 2019.

The NDG is seeking views on:

• Proposed revisions to the seven existing Caldicott Principles;
• Proposed extension of the Caldicott Principles through the introduction of an additional principle which makes clear that patients’ and service users’ expectations must be considered and informed when confidential information is used;
• The proposal that the NDG uses her statutory power to issue guidance about organisations appointing Caldicott Guardians to uphold the Caldicott Principles.

So, what’s changing?

Annex A of the consultation document includes the proposed new set of eight Caldicott Principles. The proposals include clarification on the use of and access to confidential information within health and social care organisation, from health and social care organisations to other organisations and between individuals

There is the extra Caldicott Principle too – Principle 8: Inform the expectations of patients and service users about how their confidential information is to be used.

The introduction of this new principle reflects the direction that the courts have taken in making an individual’s reasonable expectations of privacy the touchstone of the duty of confidentiality. Equally, it would align with the General Data Protection Regulations emphasis on transparency and data subject rights. It would also align with professional guidance such as the General Medical Council’s, Confidentiality: good practice in handling patient information.

In short, steps should be taken to ensure ‘no surprises’ for patients about how their confidential information is to be used and, this should include an accessible way to opt out.

Annex B includes the previous seven Caldicott Principles, marked up to show proposed changes which will greatly assist those looking to respond to the consultation.

Responding to the consultation – and by 3 September

Comments are invited from the public, patients and service users, health and social care providers, clinicians, care professionals and other health and care staff. You can share your views by completing the online survey here.

Stuart Knowles

Reporting when a healthcare professional contracts COVID-19

The Health & Safety Executive have published guidance on the application of the Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) during the current pandemic.

A report under RIDDOR is required when:

• an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This is a dangerous occurrence and does not need the worker to actually contract COVID-19 – possible exposure is enough. Lapses in control measures, such a failure in PPE or non-compliance with procedure is enough.
• a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work. This will be most likely be the case for health and care workers who contract the disease after caring for an individual with known disease.
• a worker dies as a result of occupational exposure to coronavirus. Where a report has already been made following a worker contracting the disease, a further report under Regulation 6 will be required.

Not reporting is a criminal offence and applies to all employers.

Duncan Astill

Government announces delay in its response to the Paterson inquiry

The Department of Health and Social Care announced on 28 April that there would be a delay in providing its formal, written response to the 15 recommendations made by the independent inquiry due to the COVID-19 crisis diverting resources from this work.

In Nadine Dorries’ ministerial statement, she says that she would like assure the public that the Government’s focus will resume “as soon as these unprecedented circumstance are behind us” – and that the Government remains “committed to implementing considered and effective improvement in the areas set out in the Inquiry’s recommendations”.

However, Dorries confirms that the Government will continue their discussions with NHS England, NHS Improvement and Spire Healthcare about the current and ongoing care of patients treated by Ian Paterson.

You can read our latest insights on the Paterson inquiry in a series of articles for LaingBuissson - a legal perspective and realistic pricing and risk.

Coronavirus Act and emergency volunteering leave

As the NHS and social care sector continues to manage increasing numbers of patients needing medical treatment, health and social care services are also facing mounting pressures from staff shortages due to sickness, imposed isolation and caring responsibilities. Organisations are therefore putting in place contingency plans to deal with staff shortages – this includes using volunteers as an additional source of workforce supply. The provisions in the Coronavirus Act provide the legislative measures needed to support the NHS and social care sector to increase the available health and social care workforce in particular.

So, what do the emergency provisions say in the Coronavirus Act?

The Coronavirus Act (sections 8, 9 and schedule 7) introduces a new statutory right for workers in the UK to take ‘emergency volunteering leave’ (EVL), a new type of leave created to enable workers to volunteer in the health and social care sector. But, we still await regulations bringing these provisions into force.

EVL: who is entitled to take it?

Workers who have obtained an ‘emergency volunteering certificate’. This is a certificate issued by a relevant authority which states that the person has been approved as a volunteer in health or social care. The Act lists a number of ‘relevant authorities’ who can issue certificates to workers from the Department of Health and Social Care, a local authority to the NHS Commissioning Board.

EVL: exempt workers

• Businesses with less than 10 workers
• Crown employees
• Staff of the House of Commons and the House of Lords
• Those employed under a contract of employment with the police service

EVL: how long?

The certificate must specify the dates for which the worker will volunteer and this can be anything from two, three or four consecutive weeks. The worker must give their employer at least three days’ notice before taking EVL and provide them with a copy of the certificate.

A worker can only take EVL once in each ‘volunteering period’. The first volunteering period is 16 weeks from the date Schedule 6 comes into force. But the Secretary of State can make regulations to create subsequent 16-week volunteering periods. Subsequent volunteering periods do not have to follow immediately from the end of a previous period.

EVL: rights of workers

Schedule 7 of the Act provides a range of employment protections to workers who take EVL, such as a right to return to their work in the same position as if they had not been absent. Similarly, provisions are included to ensure that a worker's pension rights are not adversely affected by taking EVL.

Part 3 of schedule 7 makes a number of modifications to the Employment Rights Act 1996, such as:

• Protecting workers who take or seek to take EVL from suffering any detriment.
• The 1996 Act will also be read as including a new section 104H, providing that if an employee is dismissed for taking or seeking to take EVL, the dismissal will be automatically unfair.

EVL: compensation to workers

The Act does not provide for EVL to be paid. However, section 9 provides that the Secretary of State must make arrangements to compensate emergency volunteers for loss of earnings, travel and subsistence costs. We await regulations that will set out the conditions a volunteer must satisfy to be eligible for compensation and the way in which compensation should be claimed with the Government meeting the costs.

NHS Indemnity cover for emergency volunteers

Do volunteers supporting the NHS response to the coronavirus outbreak have indemnity cover?

Yes. NHS Resolution state in its Coronavirus outbreak indemnity FAQs dated April 2020 that:

“Where volunteers are asked by NHS trusts to help deliver NHS services, and a volunteer agreement is in place between the trust and the volunteer or volunteer organisation, then indemnity for clinical negligence will be provided under the Clinical Negligence Scheme for Trusts.”

Guidance for staff managing new volunteer requests in the NHS

One of the key issues HR managers will be considering is how to manage the influx of new requests from the public to support their health and care organisation during the pandemic. Central to this issue is planning for how you can recruit and onboard new volunteers quickly supported by a volunteer agreement.

Supporting organisations is NHS England/Improvement’s newly published guidance, Advice regarding NHS volunteers relating to COVID-19 (version dated 3 April 2020) to assist with this process. It includes additional guidance including information governance, onboarding volunteers, volunteer management and Disclosure and Barring Service arrangements.

In addition, NHS Employers has published supporting resources on recruiting new volunteers – accepting that the volunteering roles across NHS organisations will vary depending on the nature of the service, existing roles and an organisation’s partnerships with voluntary sector organisations.

Points to Consider when Recruiting Volunteers:

NHS Employers has provided detailed guidelines on pre-employment checks, including the temporary measures to support an increased number of voluntary workers applying at very short notice.

• Criminal Record Checks - The Disclosure and Barring Service is allowing employers to fast track certain checks to allow individuals to start volunteering where a risk assessment has been undertaken and appropriate safeguards for monitoring and supervision are in place, until full disclosure is received.

• Video Conferencing to Conduct Interviews - the employing organisation remains responsible for seeking the necessary assurances that the person they interview online is actually the person presenting themselves for work, or is carrying out work on their behalf, if they will be working remotely.

• Verification of original documents, Identity Checks and Right to Work - temporary changes allow employers to accept scanned and emailed copies of original documentary evidence, but only in urgent circumstances. Original versions of documents should be received as soon as practicable. Employers will need to record that checks have been completed remotely.
• Professional registration and qualification checks - employers should continue to verify workers against the relevant professional register. Certain temporary registers have been set up in addition to the statutory registers. Employers must have the consent of the health professional and their registration number to check registration.

• Work Health Assessments - employers should continue to follow pre-existing requirements as outlined in the Work Health Assessment Standard.

• Reference and employment history - as a minimum, employers should seek at least one reference from the individual’s current or previous employer either via email or over the phone. In certain circumstances, employers will need to base any recruitment decision on what information they can reasonably obtain about the individual through the wider range of checks.

• Record Keeping - employers should ensure they maintain a record of all steps undertaken in the recruitment process, with written confirmations from relevant individuals where necessary. Information and documents provided should be retained and stored, subject to GDPR considerations.

The NHS has a strong and rich history of being supported by volunteers.  Never has the role of volunteers been so crucial to the running of the NHS and delivery of patient care.  However, even in these emergency circumstances, the necessary onboarding processes must clearly not be sacrificed in the name of urgency.

Joanna Burrows

Updated: COVID-19 guidance on immigration

The Home Office is continuing to issue further guidance on the impact of the coronavirus (COVID-19) on immigration requirements.

Key recent developments include:

• Right to work checks – as expected, the Home Office has relaxed the requirements associated with conducting checks.  As of 30 March 2020 (and on a temporary basis) checks can be carried out over video conference and job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals.  Further details can be found here.

• Automatic visa extensions – migrants with existing leave which is expiring or has expired between 24 January 2020 and 31 May 2020 will have their leave ‘extended’ until 31 May 2020 if they provide certain listed details to the Home Office’s Coronavirus Immigration Team, including why they are currently unable to return to their home country because of travel restrictions or self-isolation related to coronavirus.  The announcement indicates that the 31 May 2020 date may be extended.

• Medical workers - doctors, nurses and paramedics (and their family members) with visas due to expire before 1 October 2020 will automatically have their visas extended, free of charge, for one year.  In addition, pre-registered overseas nurses who are currently required to sit their first skills test (known as OSCE) within 3 months and to pass the test within 8 months, will now have this deadline extended to the end of 2020.

• Switching – certain individuals who are in the UK and want to apply in a long-term category will now be able to apply to ‘switch’ into any such category without having to first leave the UK to apply from overseas (which is typically required), provided they meet the other requirements of the category.  It appears this applies only to individuals whose existing leave expires on or before 31 May 2020. 

• Sponsor reporting – the Home Office has confirmed that Tier 2 and Tier 5 sponsors will not have to report when a sponsored migrant is working from home.

Whilst these are welcome steps, the guidance is thin on detail.  For example, it is not clear how English language requirements can be met for fresh applications, given that English language test centres are closed.  Furthermore, the legal basis for an automatic extension of leave is not clear.  There is also a possibility that the Home Office may not accept the reasons asserted in support of why a person is unable to leave the UK.  This may mean that the person would be regarded as an over-stayer (or not covered by any relevant concession) – with significant implications for their future immigration status - from the point that their leave expires.  

Finally, it is not clear whether Tier 2 visa conditions will be flexed to enable sponsored employees to benefit from furlough arrangements under the COVID-19 Job Retention Scheme.  The usual salary requirements for sponsorship will need to be met unless a concession is made.  Employers will also need to comply with sponsor duties in relation to their sponsored workers during a period of furlough.

Visa holders and businesses with sponsored workers will want to ensure that all necessary steps are taken to minimise the risk of future compliance issues arising.

Alex Russell

Working flexibly to assist with demands of the healthcare service

We know that managing rotas and staff attendance at this time will be a key operational consideration. Particularly when it is likely that a large proportion of the workforce may have been planning to take annual leave over the Easter break and there are not one, not two, but three bank holidays on the horizon.

We thought it might be helpful to offer a few solutions with the ever increasing demands of the healthcare service. You can read Becky Hall and Jog Hundle's full article here.

Coronavirus Act 2020: Key employment provisions for the health and care sector

The Coronavirus Act received Royal Assent last week, having been fast-tracked through Parliament in the space of four days, providing the Government with wide powers to slow the spread of the virus.

A number of employment-related provisions include, previously announced amendments to the Statutory Sick Pay scheme and a new regime to facilitate time off for volunteering during the pandemic. To find out more, head over to our hr law live blog post here.

Update on voluntary overtime case: Supreme Court grants permission to appeal

Supreme Court grants permission to appeal in voluntary overtime case

Last week the Supreme Court gave the East of England Ambulance Service NHS Trust permission to appeal from the Court of Appeal’s ruling that voluntary overtime needed to be included in the calculation of holiday pay for its workers.

Last year the Court of Appeal ruled that pay for voluntary additional shifts needed to be taken into account, not only under the Working Time Directive, but also under the claimants’ standard NHS terms and conditions (known as “Agenda for Change”). Both aspects of this ruling will now be considered by the Supreme Court.

Its decision, which is not expected for at least several months, will be of interest to all NHS employers, as well as other employers who do not currently include voluntary overtime in their holiday pay calculations.

Mills & Reeve continue to represent the employers in this litigation.

Emma Pattenden

COVID19: support for health and care organisations

With the World Health Organisation (WHO) now categorising Covid-19 as a global pandemic, news continues to report new cases, with restrictions being put in place by governments across the globe. Boris Johnson describes it as “the worst public health crisis for a generation” on the UK entering the “delay” phase of its response.

The impact on the health and care sector reaches far and wide – and with that there are likely to be issues around normal contractual performance by the virus, employment issues and insurance arrangements amongst other issues.

For further support, you can access our Coronavirus Hub which has a collection of insights and practical guidance to support you and your organisations through the complex and difficult decisions you are currently being asked to make.

Risk of reputational damage fair reason for dismissing hospital porter

The EAT has upheld an employment tribunal decision that a hospital porter working for Nuffield Health had been fairly dismissed because continuing to employ him posed too great a risk to the charity’s reputation. The claimant worked in its Glasgow hospital and was facing a criminal charge of assault to injury with intention to rape.

The claimant’s duties included transporting anaesthetised patients (who were therefore in a highly vulnerable position) to and from operating theatres. He had been working for Nuffield Health – a large charity with over 16,000 employees – for over 20 years and had an unblemished disciplinary record.

Following his release on bail, he told his employer of the circumstances of his arrest and was then suspended on full pay. After an investigation, the claimant was dismissed on notice. His employer decided that there was potentially a significant risk that their reputation could be damaged if they continued to employ someone with access to vulnerable patients when facing charges of this nature. It was made clear that no judgment was being made by the employer as to the claimant’s guilt or innocence.

The employer had considered the alternative of suspension on full pay, but there was no information about when the trial date would take place. It was considered that an open-ended suspension on full pay would not have been a justifiable use of charitable funds. However, the employer did agree that his post would not be filled on a permanent basis until the criminal trial. Should he be acquitted, he would be reinstated on the same terms and conditions, but without pay for the intervening period. That had in fact happened by the time the appeal was heard by the EAT, following the claimant’s acquittal.

The employment tribunal found that the dismissal had been fair, having been “for some other substantial reason”. As with all unfair dismissal cases, it had to consider whether the decision to dismiss was within the “band of reasonable responses” and it determined that a reasonable employer could have reached such a decision. The tribunal placed emphasis on the fact that the dismissal had not been a “knee-jerk” reaction and that there had been a reasonable investigation before the decision was reached. 

Although it acknowledged that this was “quite a difficult case”, the EAT decided that the tribunal was entitled to reach the conclusion that it did. However, it emphasised that the conclusion might have been different if the porter’s job had not involved contact with vulnerable people, or if it had been feasible to transfer him to other duties pending his trial. In addition, it was the degree of connection between the criminal charge, the employee’s role and the potential for significant damage to reputation that was crucial. For example, if the charge related to a serious driving offence, and the employee’s job did not involve any driving, then it would be unlikely that the risk of reputational damage would be serious enough to justify dismissal.

Although this case does not establish any new principles, it demonstrates that employers are not required to continue to employ a worker who is facing non-work related criminal charges where, if guilty, this could severely damage the organisation’s reputation. However, there needs to be a clear link between the criminal charge and the impact on the employee’s role, in order to establish a higher risk of reputational damage justifying dismissal. . Alternatives to dismissal also need to be actively considered. (In this case, although not strictly relevant to the fairness of the dismissal, one wonders if the tribunal was also influenced by the fact that the employer was prepared to reinstate the claimant should he be acquitted).

While this case involved an independent healthcare charitable organisation, NHS employers (as public sector bodies delivering patient care) are equally likely to face a high level of scrutiny and an increased risk of reputational damage if there is any suggestion that vulnerable patients are being placed at risk.

Joanna Burrows