This is an exceptionally difficult and rapidly evolving situation and we wish to offer reassurance that the MDDUS stands ready to assist, advise and support our members.
Doctors should ensure they remain aware of the latest guidance from the relevant government and health departments and follow those guidelines. You should be cognisant of GMC guidance, ensuring that this continues to be followed.
The GMC are clarifying and updating their guidance online, as matters proceed, which can be accessed from their hub right here.
At all times you must make the care of your patients your first concern by prioritising their needs. You should be able to justify your actions, if later called upon to do so.
What are the medicolegal considerations in relation to the new Covid-19 vaccinations? Are we indemnified for this activity? Are we indemnified to provide vaccines to practice staff?
The announcement that the Medicines and Healthcare products Regulatory Agency (MHRA) has approved viable vaccines has been most welcome. Undoubtedly, healthcare professionals and patients will have questions about this and it is never more important to keep up-to-date with relevant guidance, as this becomes available and develops.Close
It is important to keep in mind that the approval process, whilst much faster than usual, has retained the requisite steps to provide assurance regarding the safety profile. The roll-out is requiring logistics on a scale and at speed not previously seen in healthcare. It is vital to play your part but to do so safely and in line with current practice.
The GMC have produced additions to their online hub outlining considerations about the Covid-19 vaccinations, providing helpful guidance on the plans, what to advise patients, safety and whether doctors should have the vaccination. The hub is accessible via the following link here.
The GMC hub also has a new section dedicated to “Decision Making and Consent” during the pandemic, which follows an email from their chair offering reassurance that the pandemic circumstances will be considered, if a complaint were received.
What factors should I consider when consenting a young person for the Covid vaccine?
An important consideration when treating those under 16 years of age is the issue of consent. While the age of presumed capacity to make medical decisions is 16 years, the GMC guidance ‘0-18 Years: Guidance for All Doctors,’ states that, “Parents cannot override the competent consent of a young person to treatment that you consider is in their best interests.” MDDUS advice on childhood consent can be found here.
Regardless of whether the parents or young person make the approach, the GMC guidance states that doctors must assess the maturity and understanding of the individual, mindful of the complexity and importance of the decision to be made. To have capacity, an individual must demonstrate that they: have understood the decision to be made, can retain this information, which they use to weigh-up and rationalise their choice, and are able to communicate this. The GMC principles on consent can be found here.
When you consider a young person to have capacity to make a decision, you should respect the wishes of the child.
In the event that the young person does not have the capacity to consent to vaccination, it would be for those with Parental Rights and Responsibilities to make such a decision.
While parents may typically agree on their child’s medical care, disputes can arise. The Green Book explains that, “the immunisation should not be carried out unless both parents can agree to immunisation or there is a specific court approval that the immunisation is in the best interests of the child.”Close
What should I consider when undertaking remote or online consultations, rather than seeing patients face to face?
In the Covid-19 pandemic, the use of remote consulting has increased, being preferable to traditional face-to-face consultations for certain patients. Such a change to practice needs to be in line with current guidance, clinically appropriate and offer the optimum means of providing care (in the particular circumstances being faced). Patients and clinicians may be keen to reduce in-person consultations, however, remote consulting does have its limitations and it is important to keep these in mind.
Remote consulting is inherently different from traditional consultations and doctors should be aware of the unique challenges. These include considering whether you have sufficient knowledge of the patient’s background/history (particularly if you can’t access their records) and ensuring that you have informed consent from the patient to consult with them in this way (i.e. that they know there are risks, which are accepted). You must ensure that notes are made and (where possible) placed directly into the patient’s usual records, communicated to their usual team (with patient consent) and that safety netting, continuity of care and follow-up arrangements are clearly communicated to the patient and documented.
Practical issues such as connection or technological problems may also hamper the ability to undertake a remote consultation effectively. Doctors should ensure they assess all information about a particular patient carefully and that the patient’s consent to consult remotely is obtained prior to proceeding. Whilst there may be increased requests from patients for remote consultations, you must balance the overall suitability of this on a case-by-case basis.
Communication can be more of a challenge remotely, for example some of the usual, natural non-verbal cues are not available. Clearly the ability to physically examine a patient is also a consideration. You should be familiar with local arrangements to facilitate safe and timely face-to-face contact, if it becomes clear that this is needed.
Further issues include that your patient may be in an environment where they are not alone and this may impact on your ability to obtain a full history or offer an appropriate (virtual) examination.
If an examination is needed, you should consider how best to safely arrange this. While the GMC’s guidance does not explicitly exclude the possibility of an examination taking place remotely, it is clear that face-to-face treatment may be preferable if you need to examine the patient. That said, the GMC has recognised that doctors may need to depart from established procedures during this pandemic and, with that in mind, there may be a stronger argument for undertaking a remote examination during the current climate than would ordinarily be the case. When considering a remote examination, you should discuss the limitations with the patient and consider whether it is best to defer to a face-to-face consultation. If a remote examination is felt to be appropriate you should keep in mind your usual professional duties, including offering a chaperone for any examination which may be categorised as intimate. However, where a chaperone is required, you should carefully consider whether it remains appropriate to consult virtually and whether it will be possible for the chaperone to effectively discharge their role in a remote setting. Consideration should be given to logistical/security issues involved in a chaperone joining a remote consultation as a third party, if it is not possible for the chaperone to be physically present alongside you. If you proceed, you must be able to explain and justify your decision and also ensure the patient is fully informed and consents to proceeding in this way.
You should consider how records are made and recorded on the system you use for remote consultations. Patients should be informed, particularly if a video consultation will be stored in their permanent medical records.
You should also be live to the potential risks associated with remote prescribing and ensure that you follow GMC Guidance in this regard.
Useful links with further guidance and advice below.
GMC: Remote consultations
GMC: Remote Consultations during the COVID-19 Pandemic - FAQs
GMC: Good practice in prescribing and managing medicines and devices (2013). This includes a section on remote prescribing.
What should I consider when delivering vaccinations outside the practice premises, such as in a car-park or town hall, where there is more room?
It is commendable to consider the optimum means of delivering vaccination programmes, and where those will be administered. The delivery of vaccinations outside the practice may be an option but careful consideration is needed as this presents particular challenges.
Full and detailed consideration of the potential for patient safety issues arising in providing care in this way is needed. For example, what steps can be taken to ensure the environment is suitably hygienic and that the surroundings and equipment are appropriate for delivery of care? You should also bear in mind any potential adverse patient reactions, such as a vasovagal or anaphylactic episodes, and how those would be safely managed when providing care outside the practice. The safe transportation and storage of vaccinations must also be considered.
Confidentiality considerations would be required to ensure steps are taken to protect a patient’s right to privacy avoiding the risk of care delivery being witnessed or overheard by others when interacting with patients outside your usual consulting rooms.
MDDUS membership will provide expert advice, support and representation in respect of this work should any complaints or regulatory issues arise.Close
You must also ensure you are adequately insured to undertake such work outside the usual practice premises for claims other than medical negligence (e.g. “slip and trip” personal injury claims). You should review your employer's liability/public liability insurance policies and confirm with your provider that such activity is covered.
Finally there may be contractual or regulatory issues for you to consider, and you should contact your health board, commissioning body, and/or the organisation’s regulator (such as the CQC) to ensure they are agreeable and you are correctly registered to practise in this way. For detailed contractual guidance you may wish to get in touch with the BMA or LMC representative in your locality. The CQC have provided useful information for practices in England setting out their requirements and suggested considerations, link here.
You may also find it beneficial to discuss with colleagues in your locality to assess and consider how other Practices are delivering the vaccination programme during the pandemic.
For all the above reasons it is important to proceed with caution when considering delivering care outside the practice premises.
What should I do with photographs patients send to assist with remote consulting? Should these be stored in the records?
When consulting remotely, patients may volunteer to provide digital photographs or the doctor may ask for a picture. It is understandable that instant digital images are being used to support remote consulting. Sharing of images can facilitate provision of remote care during the COVID-19 pandemic and therefore help reduce avoidable face-to-face consultations. However, some important factors should be considered. Please also keep in mind that if an image is needed, but the patient does not consent to using or storing this as described below, consideration should be given to whether a face-to-face consultation is needed instead.
Patients should be treated with dignity and respect and must be asked to provide their consent to share a photograph with their doctor, without any pressure. Consideration should be given to the nature of the photograph and whether the patient may feel uncomfortable to share an image in this way. The patient may also be concerned about the use of technology in relation to their health, underscoring the importance of obtaining valid and informed consent.
You should also consider whether the images provided are of sufficient quality to rely on or if alternative technologies, such as high-quality video images or deferred face-to-face consultation, would be more appropriate.
Any images should be stored in the patient’s medical record. The GMC has prepared useful guidance on the storage of imaging. It is explained in paragraphs 57 to 59 of, ‘Making and Using Visual and Audio Recordings of Patients,’ that, “recordings made as part of the patient’s care will form part of the medical records. They must be treated in the same way as other medical records.” Such images should therefore be subject to the same rigorous security as all medical records to ensure compliance with your legal obligations and duty of confidentiality.
It is vital to have a system of good governance in place and that you ensure the patient is fully informed about how this data will be handled.
Certain record keeping systems allow images or video recordings of remote consultations to be saved directly to the medical records. Clinicians must ensure that patients are aware of this detail, so the patient is given opportunity to decide whether to proceed.
The GMC Guidance, ‘Confidentiality: Good Practice in Handling Patient Information,’ confirms that any personal information that you hold or control must be, “effectively protected at all times against improper access, disclosure or loss.” You must also consider security and ensure that the platform used to share patient images is sufficiently secure. You should use approved technology for patient photographs and avoid use of personal devices. We would recommend best practice in order to minimise risk is for incoming patient images to be sent to the official practice email address, practice mobile device, or following your employer’s policy / official communication channels and deleted from that device or account once saved to the patient’s electronic record.
Challenging issues can arise and for individualised advice (such as managing sensitive patient images) we would recommend that members get in touch with MDDUS for advice on their particular situation.Close
We now require patients to wear protective items, such as face-masks. What should I do if a patient refuses to wear this protection, can I refuse to see them?
This is a difficult situation and, as with any complex medico-legal matter, it would be important to firstly gather information, including any reasons the patient provides for their refusal to comply with wearing protection. Such exploration and discussion may result in the patient agreeing to follow the policy, particularly if they hadn’t understood the reasons for it.
If a patient remains unwilling to wear protection, consideration should be given to the latest guidance and whether any authoritative guidelines apply. Preference should be allocated to guidance from national organisations such as Public Health services, the NHS and governments’ departments of health. You should undertake a risk assessment, taking into account all of the relevant factors and guidance to weigh those in the balance, and make a judgement on what would be considered reasonable in the circumstances.
One of the key factors to consider is that doctors have the professional obligation to make the care of patients their first concern. It is therefore likely that any healthcare professionals who decide not to provide care to a patient in such a situation would need to have sufficient justification for adopting this position. GMC guidance states “If a patient poses a risk to your health or safety, you should take all available steps to minimise the risk before providing treatment or making other suitable alternative arrangements for providing treatment.”
In assessing the risk, consideration should also be given to the following factors:
- whether the clinician wears personal protective equipment (PPE)
- if the patient has symptoms or confirmed covid-19 infection
- if the clinician is not known to be at higher risk
- duration of contact, and
- if the patient can maintain sufficient distance
It is important in such situations to make a reasonable decision about how to proceed and ensure that you would be prepared to explain that decision, if you were later called upon to do so. Your decision would depend upon the facts and it is worth keeping in mind that healthcare providers could be criticised for a policy of global refusal to provide care to patients who refuse to wear face coverings. Therefore, individual practice policies on treatment of patients who refuse to wear protective items such as face-masks should build in flexibility to engage with a patient and to consider the particular circumstances of that case.
While from 19 July 2021 it is no longer a legal requirement to wear face coverings in indoor settings in England, the government has published guidance on when you should wear a face covering. The government “expect and recommend that members of the public continue to wear face coverings in crowded and enclosed spaces where you come into contact with people you don’t normally meet.” This is particularly the case where the risk of transmission is likely to be greater.Close
The government continues to reference Infection Prevention Control guidance from Public Health England. This “advises that patients and visitors across all healthcare settings should wear a face covering, providing it is tolerated and is not detrimental to their medical or care needs.”
NHS England has also confirmed that NHS patients, staff and visitors must continue to wear face coverings in healthcare settings. They confirm that the NHS will continue to support staff in ensuring that the guidance is followed in all healthcare settings.
What if I am asked to work in another area or outside my usual limits of competence e.g. non-intensive specialists working in ICU or academics working clinically?Since the Covid-19 pandemic took hold in early 2020 some doctors may be asked to work outside their usual speciality. For example, a consultant gastroenterologist or a consultant neurologist who has not worked in an intensive care environment since a junior doctor – potentially many years earlier – may be asked to support and ease the pressure on specialist ICU colleagues in the support of patients suffering from Covid.
In the interests of individual patients, the whole patient population and the wider prevailing public health issues, a doctor may be asked to work outside their usual speciality at short notice. Since the pandemic started, it has become accepted and recognised that doing so is appropriate where necessary, but there are important safeguards to consider, ensuring that patients are not exposed to unnecessary risk and that doctors are protected from medicolegal risk of criticism. When assisting in this way doctors must of course be mindful of current national and local guidelines – which can change at short notice.
Doctors assisting outside their speciality will often be able to apply many generic skills as well as their overall experience and wisdom but must be aware of their limitations and the support available from others in the healthcare team. For example, there may be opportunity to renew previously acquired but dormant skills, such as re-training to insert a chest drain or central line. This may be under the supervision of a more junior doctor such as an experienced trainee in ICU medicine; such a scenario demonstrates how a senior grade doctor can learn from a junior doctor for the benefit of patients.
If called to work in another speciality, doctors should do all they can to prepare, such as accessing online or local training and ensuring they know when and who to contact for advice.
As with all challenging decisions, where possible, doctors should canvass the views of their senior colleagues and management to inform their decisions. Doctors should document decisions they make, including the rationale.
In an emergency, with no alternatives, doctors should do their best to provide safe care that benefits the patient. They must ensure patients are not exposed to unnecessary risk and should tell seniors or management if they think patients are being exposed to avoidable risk.
I have underlying health conditions, how should these be considered? In particular, what effect does my health have on my duty to work versus the right to be protected from infection?
Employers / contracting bodies should be taking all the steps they can to keep staff as safe as they can be. Given this is a rapidly developing situation, difficult decisions may need to be made. If you are worried about your own health, you should discuss your concerns with your employer and / or Occupational Health to assess how best to proceed. It may also be appropriate to discuss your concerns with your own doctor.
If you are concerned that you may have coronavirus / COVID-19, you should follow the current public health guidance. As with any illness, if you are unable to work you will need to ensure that a suitably qualified colleague is available to take over the care of your patients.Close
I have been approached by the media, what should I do?During the COVID-19 pandemic, there has been extensive coverage of the medical position and doctors may be approached by journalists.
Please see this link to a helpful article outlining our advice for such a situation.
What about colleagues who have tested positive for COVID-19 or who have symptoms? What if there are dangerous staff shortages and they need to come back to work?
All healthcare professionals and members of the clinical team must ensure they follow the latest government / department of health / public health guidance in relation to their fitness for work for their locality. Such guidance applies to healthcare workers in the same way as it does to the whole population and must be followed. This includes strict adherence to self-isolation requirements, whether due to your own symptoms, if others in your household have symptoms, test results and ensuring compliance with the relevant testing or contact tracing processes.
In these difficult times, there may be colleagues who feel pressure to return to work before the guidance allows. If faced with such a situation, where there are limited alternative options, doctors would be expected to consider the particular situation, ensuring they select the best option to protect patient safety, both patients as individuals and the population more widely. Doctors must ensure that all factors have been considered and they have (where possible) obtained agreement from specialist bodies (such as the public health team) and their employer, if intending to take a course of action not covered by the guidelines.
As with all challenging decisions, particularly in unprecedented situations such as this, doctors must be prepared to justify their decisions, if later called upon to do so.
If you have any concerns about the clinical care that is being provided, you should raise those concerns through the appropriate channels, in line with GMC guidance here.Close
What other considerations are needed following the rapid changes to practice and the need to review?
Given the situation is rapidly evolving in light of new information, it is vital that processes are put in place to ensure you are kept up to date with the latest guidance. Processes should be reviewed on a regular basis to assess how they are working, ensuring they adhere to the relevant guidance at that time and that changes can be made quickly, if needed.
For example, healthcare providers will now have processes in place to assess and manage patients with suspected COVID-19, whilst minimising the chances of onward spread. Processes may also have been instigated to rapidly assess even non-acute patients to allow optimisation of limited healthcare resources. It is important to regularly review such emergency measures to ensure they continue to represent the current best means of delivering care. It would be appropriate to keep a record of processes you institute and the reasons for those.
Working remotely: how can I ensure maintaining patient confidentiality?
For those being asked to work remotely, be mindful of your ongoing professional duties and take steps to ensure compliance, as far as possible. For example, a patient’s right to confidentiality remains and all steps should be taken to ensure this is protected. You may wish to consider where you are working and how you can protect the security of data you access.
Consider potential sources of accidental data breaches, such as being overheard, and take steps to mitigate those risks. From a practical perspective, think about the way you are now handling patient and your own personal data; do you need to ensure your telephone number is blocked? What about your phone bills, might patient data appear there and have you protected this data?
If you are in doubt, speak to your Data Protection Officer or contact MDDUS for advice.Close
I am a recently retired doctor and I’m thinking about returning to practice, what do I need to consider?
The GMC has written to eligible doctors who have recently left the register to grant temporary registration under the GMC’s emergency powers, so they can return to practice. Further information about this is available here.
With immediate effect, MDDUS has automatically reinstated membership benefits for all doctors who have retired in the past three to six years.Close
I am a medical student and I want to offer assistance. What do I need to consider?
Medical students may also be able to offer a source of assistance to the healthcare team. Students would be offering voluntary help and should not be carrying out any duties of a doctor. If you do offer to assist, you should only be asked to undertake tasks you are competent to perform and satisfactory supervision should be in place.
Have a look at the GMC guidance, including advice in relation to your health and your ongoing education.
You may also be interested in the Student Support guidance for Scotland during COVID19 Outbreak: medical, nursing and midwifery - please read the full Scottish Government guidance here or download the pdf.
NHS Resolution have clarified that volunteers asked to assist delivering NHS services, who have a volunteer agreement in place, will have indemnity for clinical negligence through the Trust’s indemnity scheme. They have clarified that similar arrangements are in place across other devolved UK nations. Further information can be found on the NHS Resolution site here.Close
I am worried about my own physical and mental health, are there any sources of support?
It is vital that you look after your own health. This is an unprecedented situation and your resilience and coping mechanisms are likely to be pushed to the limits. Take time to find the best support for you.
If you are worried that you may have symptoms or Coronavirus / COVID-19 you must follow the current public health guidance. You may need to arrange for a suitably qualified colleague to immediately take-over care of your patient.
For support, please take the time to view our member wellbeing and mental health page here.
Also, a list of support services can be accessed via NHS Practitioner Health at the following link here.Close
Can I carry out advance planning for groups of patients? For example, DNACPR orders for nursing home patients?The COVID-19 pandemic presents unparalleled challenges to healthcare providers and it is natural that processes to improve efficiency are being considered. However, person-centred care is at the heart of clinical practice and any discussions about plans for future care (including DNACPR orders) must be individualised to that patient. Even during a pandemic, where resource pressures are being felt acutely, it is not acceptable to apply future care plans to groups of patients, even if patient cohorts have similarities.
When considering advanced care planning for a patient, doctors must ensure they take into account the relevant legal frameworks (such as capacity legislation) as well as their professional and ethical obligations. Discussions about a patient’s future wishes are emotive and should be approached sensitively. A patient must be aware of their options and have had opportunity to consider their wishes. Those close to the patient and others in the healthcare team should also be involved, as appropriate.
The GMN / NMC have published a helpful statement setting out the appropriate guidance and considerations in such matters, which you can access here.
I have concerns about increased risk of complaints or GMC referrals, if the care provided is not to the usual standard. Will the MDDUS support and defend me in that situation?
MDDUS can offer reassurance to members that you can approach us for advice and guidance at this challenging time. We have confirmation from the GMC that, whilst doctors should continue to follow the GMC’s professional guidance, responding to this pandemic requires flexibility.
The GMC have clarified that these standards can only be applied as far as is practical in the circumstances. The GMC chair, Dame Clare Marx, has shared her advice online here.
In her message to doctors, Dame Marx advocates a measured approach to varying standards as the situation demands. She states “responding to this pandemic will require us to do things differently. It will require us to be flexible… any concerns raised about your practice will take into account the extreme circumstances in which you are working.” Dame Marx confirms that, “In this national emergency, that means taking a measured approach to varying standards as the situation demands. In the peak of this outbreak, that could include departing significantly from established procedures.”
As the situation develops, doctors should use the current guidance to inform their decision-making.
The GMC will take account of exceptional circumstances but you do need to be in a position to explain and justify decisions you make, if later called on to do so. It is good practice to document such decisions carefully, including the reasons. This is all the more important in these unusual circumstances and where guidance may not be available that directly applies to the decision you are facing. If you are in doubt about any medicolegal or ethical aspects, please contact MDDUS for advice.
The GMC has made clear, in a Joint Statement with the other statutory regulators of health and care professionals that they recognise the anxiety doctors are feeling about how context is taken into account when concerns are raised about their decisions and actions in very challenging circumstances. They have further added that where a concern is raised about a registered professional, it will always be considered on the specific facts of the case, taking into account the factors relevant to the environment in which the professional is working. They would also take account of any relevant information about resource, guidelines or protocols in place at the time.
The GMC reiterated this position in a further Joint Statement, which can be accessed here.
Should you face any medicolegal issues, such as a complaint or GMC referral that arise from your clinical actions, members can always turn to MDDUS for advice and support.
You may wish to also review our webinars on medicolegal issues and decision making for further guidance in relation to the COVID-19 situation.Close
There are reports of shortage of protective equipment: if PPE is not available or not the type expected, what should I do? What if patients need to be seen and there is not the right equipment available to see them safely?All employers / contracting bodies should be taking all the steps they can to keep staff as safe as can be. Given this is a new and rapidly developing situation, difficult decisions may need to be made. Employers also have a responsibility to provide staff with the right information to minimise risk. You should follow the latest applicable guidance if you are in doubt.If you are concerned that you do not have the correct protective equipment, you should raise this with your employer/Trust/Health Board or public health department and work with them to try to resolve the situation as quickly and safely as possible, ensuring patients are cared for. Doctors will be required to make a judgement on a case-by-case basis on how to proceed, based on the urgency of the situation and any alternatives to direct face-to-face contact that are available e.g. online or telephone consultations. For further information, please read the MDDUS document, 'Raising concerns amidst COVID-19' here.You should take the following factors into account:
- whether treatment can be delayed, or provided by another means, such as remotely
- whether additional steps can be taken to minimise the risk of transmission
- whether any doctors are at a higher risk from infection than other colleagues
- what course of action is likely to result in the least harm in the circumstances
The GMC have provided advice on their approach to doctors making decisions about PPE online, within the “Working Safely” section of their FAQ hub here.