Lifting the medico-legal burden during COVID-19 pandemic

Pauses to the NHS complaints and ombudsman’s procedures and fitness to practise investigations and hearings during the coronavirus outbreak.

Clinical and other NHS staff are working extraordinarily hard during the COVID-19 pandemic and they need to be able to fully concentrate on their clinical duties. In light of this, NHS England, the ombudsman and GMC have all paused or amended their procedures with the aim of lessening the burden on doctors and other healthcare staff.

NHS complaints

In order to help limit the administrative burden on clinicians and managers, NHS England and NHS Improvement have announced that staff have the option to 'pause' the NHS complaints procedure for three months, effective immediately.

In practical terms, what this means is as follows.

  • The complaints procedure is still operating and the statutory duty to investigate and respond to complaints has not gone away during the 'pause'. What has changed is the expectation that NHS organisations will be able to investigate complaints in a timely and efficient way in these challenging times.
  • Complaints must still be acknowledged. Keep in mind that the NHS complaints regulations allow for a complaint to be acknowledged orally but where this is done, it is important to keep a record of that acknowledgement, including any information given to the complainant.
  • The substance of a complaint must still be reviewed to make sure it does not highlight something that needs urgent action, for example; patient safety concerns, safeguarding issues, etc. Where concerns are identified, you are expected to take action under your usual procedures to address them.
  • If there are no urgent matters identified, all complaints should remain 'open' pending investigation and final resolution. When informing complainants they should also be told when the NHS organisation is likely to be able to progress the complaint. This estimate may change, depending on the circumstances, so it would be prudent to add this caveat to the information you give to the complainant.
  • Ensure there is system to record complaints already in the system and complaints received during the pause period. If resources allow, these could be reviewed from time-to-time to see whether you can agree a satisfactory resolution with the complainant.
  • Some complaints might be relatively straightforward and acknowledgement of what happened with an apology might be sufficient to resolve matters. Organisations that believe they can do so can resolve of complaints during the 'pause'.

Health Service Ombudsman

The guidance for complaints handling at a local level has been complemented by a decision by the Parliamentary and Health Service Ombudsman (PHSO) to stop accepting new health service complaints. It has also decided not to progress existing complaints where it would need to contact NHS organisations, from 26 March 2020.

The PHSO's rationale is that it 'should not place additional burdens on the health service during a time of national emergency'. The PHSO will resume its normal consideration of complaints as soon as possible.

Scotland, Wales and Northern Ireland

The NHS and the Ombudsmen in the devolved administrations have all taken a broadly similar approach with the aim of lessening the burden on doctors and other healthcare staff.

Fitness to practise procedures

The GMC is continuing to assess and respond to concerns received, but has changed the process for seeking information from employers and doctors, and other healthcare professionals. It will only ask for information if it relates to an immediate patient safety concern. The GMC recognises that some cases may take more time and others may not progress at all for the time being. The GMC will inform any doctors affected.

The GMC will continue with:

  • interim order applications and review hearings
  • substantive order review hearings
  • relevant court interim order extension applications.

Please keep in touch with the MDU about any ongoing case, or if you receive a new GMC referral.

The Medical Practitioner Tribunal Service (MPTS) has also postponed all fitness to practise hearings from Wednesday 18 March to allow its medical tribunal members to help respond to the COVID-19 pandemic.

It will continue to review existing sanctions, and consider new interim restrictions referred by the GMC. These hearings will be heard using Skype for Business or be considered by a legally qualified chair on the papers. MDU solicitors are continuing to assist members with these procedures.

This page was correct at publication on 07/04/2020. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

Mike Devlin MDU head of professional standards and liaison

by Dr Michael Devlin Head of professional standards and liaison

Michael was an MDU medico-legal adviser for 15 years, latterly as head of medico-legal services, before taking up the new role of head of professional standards and liaison. He sat on the FFLM's academic committee and was previously treasurer, and an examiner for the MFFLM. He has published widely on medico-legal matters, and has significant experience in teaching and assessing knowledge in medico-legal subjects.