Mills & Reeve: Health and Care Update

NHS commits further support for race equality

New bespoke set of indicators to allow analysis of career progression and representation amongst the medical workforce

Covid-19 has highlighted the importance of workforce equality and therefore the implementation of the Workforce Race Equality Standard, or WRES. Since 2015 all NHS organisations have been required to demonstrate how they are addressing race equality issues through the WRES. Published annually, the WRES indicators have provided “compelling evidence” of ethnic variation in staff experience and have been a catalyst for organisational change.

Earlier this month, NHS England published WRES indicators for the medical workforce to ensure employees from Black, Asian and Minority Ethnic (BAME) backgrounds have equal access to career opportunities and receive fair treatment in the workplace. With 41 percent of the doctors in the NHS being from BAME backgrounds, one of the key priorities for the WRES according to the document has been to develop a specific set of indicators that would enable ethnic variations in the experience of the medical workforce to be assessed.

But why are different data required for doctors? Race inequality is complex and difficult, addressing it is critical on multiple levels. There is also wider implications for the health service: evidence shows that a motivated, inclusive and valued workforce helps deliver high quality patient care, increased patient satisfaction and better patient safety. So having a set of indicators capable of illuminating racial inequalities in the medical workforce, and pin pointing areas for action will play an important role in the NHS becoming a better place to work and build a career.

Development of the WRES indicators for the medical workforce

According to the guidance, the overall objective was to develop a set of WRES indicators for the medical workforce that fulfilled the following criteria:

• Similar to the standard WRES indicators in terms of the dimensions of ethnic inequalities. They would also cover developmental opportunities, career progression, treatment by patients and employing organisations and representation.
• Based on data already collected and published, which could reliably be assessed annually.

11 indicators for the medical workforce

• Indicators 1 to 4 reflect variation in career progression and pay, differential attainment at various stages of training and differences in treatment by the regulatory system.
• Indicators 5 to 10 represent medical staff perceptions of how they are treated by colleagues, employing organisations and patients.
• Indicator 11 highlights the diversity of the councils and boards of medical institutions, such as the medical royal colleges.

Further details on the indicators can be found at Annex B including data sources for each indicator.

What next for WRES data for the medical workforce

A full set of data against these new indicators will be reviewed and published as part of the annual WRES data report for NHS trusts later in the year –  enabling the monitoring of progress in the NHS race equality agenda.

The task now for all NHS organisations is to pick up the pace of change using the WRES data to engage with its staff.

Jog Hundle

New immigration rules ‘highly damaging’ for the care sector

Concerns remain about the new points based immigration system that comes into force in January 2021 and the current lack of a migratory route for social care staff. While the new system does include a migratory route for registered health and care professionals to work in the UK, it excludes social care workers and many would not meet the new salary and qualification threshold.

In the Cavendish Coalition’s recent letter to the Prime Minister, it states that it is “critical that the Government ensure a transitional solution is in place for social care in January 2021 to navigate the gap between the introduction of the new immigration system and a longer tem plan and funding settlement for social care in England”. The Coalition made up of 37 leaders from national health and social care organisations, including Care England expressed “profound concern” that the resulting Immigration Bill is heading towards an “alarming destination with no obvious solution for the care sector”.

The letter states that for the care sector where one in six are foreign nationals and with 122,000 vacancies in England it would be “unwise” to believe that domestic recruitment will solve all social care’s immediate problems. Indeed, it indicates that in a recent survey of health and care workers one in five are likely to leave their roles following the pandemic – with retention likely to become a growing problem for an already challenged sector.

Employment webinar: The new post-Brexit immigration system

Join Alex Russell on Tuesday 29 September for a review of the new immigration system coming into play in January 2021. The event will be relevant to all employers including those working in the care sector. You can register here.

New details emerge on NHS People Plan

Since the publication of the interim NHS People Plan in June 2019, the health and care landscape has changed significantly due to the Covid-19 pandemic. NHS England and NHS Improvement has now published the People Plan for the NHS 2020/21 which sets out an NHS workforce strategy for the coming year and a half – as well as making a clarion call to “foster a culture of inclusion and belonging” within the NHS.

The Plan sets out actions for employers, NHS England and NHS Improvement and Health Education England for the remainder of this year and into 2021. It focuses on four themes:

• Looking after our people
• Belonging in the NHS
• New ways of working and delivering care
• Growing for the future

But the Plan does not contain a commitment for new money to ensure full implementation – commenting on this NHS Confederation Chief Executive Niall Dickson said:

“The government must fulfil its pledge to provide a comprehensive and realistic multi-year settlement in the Comprehensive Spending Review in the Autumn – a settlement which supports the ambitions in the Plan to tackle a workforce crisis which every day places intolerable strains on staff up and down England.”

Overview of the Plan: key themes

• A commitment to look after the workforce with particular focus on tackling the discrimination that staff from the BAME community can face.
• The NHS needs more people, working differently, in a compassionate and inclusive culture.
• Covid-19 should be viewed as “springboard” for further change and innovation - harnessing the momentum, scale and pace of transformation that Covid-19 has brought about.
• Implementation plans will differ across settings but there is a need for local systems to work together to deliver the Plan’s principles.
• The Plan calls for all systems to develop a local People Plan, with organisations encouraged to develop these alongside partners – including in social care and public health. In particular, all systems should review their local workforce position with providers and implement arrangements for their areas to “increase resilience and capability”.
• On expanding the workforce fit for the future, including the plans for education and training details are pending and subject to the Government’s autumn spending review commitment.

The specific actions for each area have been neatly highlighted in a summary table produced by NHS Employers, part of NHS Confederation. You can view the table here which sets out key actions for employers, systems and national bodies in the People Plan 2020/21, including a timeline where provided.

You can view a republished version of the plan here dated 6 August 2020 – it includes a correction to a drafting error within the section ‘Belonging in the NHS’ relating to a section on equality, diversity and inclusion.

Jog Hundle

Response to consultation on public sector exit payments cap published

The Government has published its response to last year’s consultation on implementing the public sector exit payment cap. With the exception of a quicker roll-out across the public sector, last year’s proposals have not changed significantly. However we do not have an implementation date as yet.

Plans to cap public sector exit payments at £95,000 have been floating around for many years. They were first put forward when David Cameron was Prime Minister and the necessary regulation making powers have been in place since 2016. However, implementation has been repeatedly delayed due to a number of factors, not least the complications surrounding extending the cap to cover the value of enhanced pension benefits, which sometimes form part of a termination package in the public sector.

The outline of the proposals should now be familiar, but here is a quick reminder:

• The cap will apply across the core public sector, including central and local government and the NHS
• The cap will extend to contractual entitlements on termination of employment, with the exception of notice pay (capped at 25% of salary) and accrued holiday pay
• Statutory redundancy payments and payments to compensate for injury or illness (including injury to feelings) will be exempt
• The value of any entitlement to an unreduced pension on early retirement will also be captured (these benefits ceased to apply in the NHS from March 2015)
• There are record-keeping and reporting requirements to support the obligation to apply the cap

We won’t have all the final details until the revised regulations are published. Currently there is only a 2019 draft of the regulations, which was published with the consultation last year. However, in the light of the response to consultation, we are not expecting significant changes.

There is no further news on the linked proposals to claw back public sector termination payments where the recipient gets a new public sector job within a defined time-frame. However, the response to consultation includes this statement:

 “The government remains committed to ensuring exit payments can be recovered when high-paid public servants move between jobs and will take forward further regulations in due course.”

Jog Hundle

Lack of a migratory route for social care in new immigration system

The Government has published further details of the new immigration system which replaces EU freedom of movement from 1 January 2021.

The regime’s new Health and Care Visa category has been the subject of considerable criticism, particularly from the social care sector.

Applicants for this category will need to meet the same criteria as for Tier 2 and Skilled Worker visas. This means it will not provide a visa option or route into the UK for many roles in the social care sector.  Applicants will need to be coming to the UK to perform one of 18 eligible occupations, including medical practitioners, nurses, pharmacists, physiotherapists and paramedics.

The new points based immigration system comes despite repeated concerns raised by key stakeholders in the adult social care sector, including the Cavendish Coalition about workforce shortages. Commenting on the announcement, Professor Martin Green, chief executive of Care England, said “the Government has failed to pay any dues to the sector’s specific needs thus leaving us out in the cold”.

Green continues:

“We must ensure that all efforts are made so that adult social care is perceived as a good career choice on a par with the NHS. In order to do this we need to see substantial investment from Government rather than short term sticking plasters. There will be a continuing need for overseas staff until the Government delivers a proper workforce strategy for social care and also the money required to give the staff the salaries and conditions they richly deserve. Our staff are our best resource and we want to reward them as such”.

The Cavendish Coalition have issued a letter to the Prime Minister expressing their “grave concern” about the egregious decision to exclude the social care sector from its new immigration system. The Coalition represents a group of 37 organisations in the UK’s health and social care system.

You can read the full details of post-Brexit immigration regime in an article prepared by our immigration team here.

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