Can I use flexible furlough to utilise an employee’s holiday entitlement?

The Government has recently passed the Coronavirus Act 2020 in a response to the challenges posed by the pandemic, especially in relation to those facing the NHS during this time of crisis.  NHS Resolution worked closely with the Department for Health and Social Care to draft a clause within the Coronavirus Act providing indemnity for clinical negligence for any coronavirus related activity not currently covered by an existing arrangement.  In order to implement this clause, NHS Resolution has launched the Clinical Negligence Scheme for Coronavirus (“CNSC”).

It is intended that the CNSC will cover new contracts put in place for healthcare arrangements to respond to coronavirus, such as organisations supporting testing arrangements or Independent Contractors making agreements with NHS England and NHS Improvement to release capacity to the NHS.  Membership is not required for this scheme and the contracts entered into will automatically provide indemnity under the scheme.

The CNSC will not replace existing indemnity provisions made under the Clinical Negligence Scheme for Trusts (“CNST”) and it has been confirmed that the new Nightingale Hospitals will be covered by CNST rather than CNSC.  Similarly, NHS Resolution have confirmed that those doctors and nurses returning to practice from retirement, or those joining as students will be covered by the CNST or, where applicable the Clinical Negligence Scheme for General Practice (“CNSGP”).  The CNSC will not cover returning midwives to the profession, but the Royal College of Midwives have confirmed that they will extend all of the benefits of membership including Medical Malpractice Insurance to returning retired midwives.

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In many scenarios created or affected by the pandemic, decision makers in hospitals and care homes will need to decide:

• if new arrangements constitute a ‘deprivation of liberty’ (most will not), and
• if the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation will be required (in most cases it will not be).

If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations.

A summary of the key points to be taken from the guidance is outlined below:

Use of the MCA and DoLS due to Covid-19

• During the pandemic, the principles of the MCA and the safeguards provided by DoLS still apply.
• It may be necessary to change the usual care and treatment arrangements, for example to provide treatment for people with Covid-19, to move them to a new hospital or care home to better utilise resources or to protect them from becoming infected.
• All decision makers are responsible for implementing the emergency Government health advice  and any decision made under the MCA must be made in relation to a particular individual, it cannot be made in relation to groups of people.

Best interest decisions

• In many cases, a best interests decision will be sufficient to provide the necessary care and treatment for a person who lacks the capacity to consent to the care and/or treatment arrangements during this emergency period.
• If an individual has made a valid and applicable advance decision to refuse the treatment in question, then the relevant treatment, even for Covid-19, cannot be provided.

Delivering life-saving treatment

• Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of Covid-19, then the person will not be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder.
• The DoLS will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with Covid-19.

The full guidance can be found here.