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What do we do if we cannot meet the Court directions order / timetable?

An amendment to the Civil Procedure Rules’ Practice Directions has been approved by the Master of the Rolls and the Lord Chancellor on 1 April 2020, and is now Practice Direction 51ZA. This has the effect of allowing the parties to extend by prior written agreement up to a maximum of 56 days (rather than the usual 28 days detailed at CPR 3.8(4)) any rule, practice direction or order provided that any extension does not put at risk any hearing date. This Practice Direction will cease to have effect on 30 October 2020.

Additionally each regions’ Designated Civil Judge (DCJ) has issued a Covid-19 Protocol. There are some minor variations between the regions, but overall the guidance is very similar.

In Northumbria, Durham and Teesside the DCJ guidance for multi-track cases provides that “The parties are at liberty to extend, by consent, any step in the timetable up to a maximum of 90 days (as opposed to the present limit of 28 days)” and the Court does not need to be notified if the Trial date is not effected. Where Trial windows are likely to be impacted due to Covid-19 and the parties are in agreement to extending this, a letter can be sent to the Court with a draft order proposing a new timetable, including a new trial window and agreed availability within the trial window.

The same guidance also confirms that an electronic signature on all documents including witness statements and disclosure statements will suffice.

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There has been a significant amount of press coverage talking about institutional racism within the NHS not only in terms of the treatment of patients but also in terms of the low representation of ethnic minority staff in management positions. Whilst tackling that issue is beyond the brief here, it is important to recognise that sub conscious bias can, regrettably, play a part in decision making processes. An Employment Tribunal will explore a alleged discriminator’s conscious and sub conscious decision making and working in an environment which has not set out sufficient controls to avoid such sub conscious stereotyping places someone at a greater risk of being discriminated against.

In the context of the issues we are addressing here, i.e. risk assessments around BAME staff, as we have stated above, it is essential that BAME staff are represented at all levels in the discussion. Trusts need to be mindful that BAME are underrepresented in management positions.

BAME staff need to be included in the dialogue and need to have a safe place where they can challenge decisions that are being made in relation to them. There needs to be accountability in the processes applied. Meaningful conversations need to happen and concerns should not be dismissed.

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How do I go about registering a death at this time?

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What is the Clinical Negligence Scheme for Coronavirus?

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.

For more information regarding this please click here.

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How do I ensure my use of video conferencing calls complies with GDPR?

With the loss of face-to-face meetings in the current situation, video conferencing has taken centre stage. But how do you do that in a compliant way? Here are some of the main high-level data protection issues to consider when selecting and implementing a new third party provider’s video conferencing system.

  1. Make sure you do your due diligence on the security measures offered by the provider. Clearly you can’t visit them, so look at the information offered publicly by the provider and read good quality, reliable, third party sources and ask the provider questions directly. Also ask any other organisations you know that use the provider. Document all this.
  2. If personal information is being sent outside of the UK/European Economic Area, make sure that transfer complies with GDPR. If it’s a US provider, is it registered in the EU-US Privacy Shield list or does it offer a model clause contract (you’re likely to need the 2010 version)? Or is the service provided from a country whose data protection laws offer equivalent protection to those in Europe? Look at the support service as well as the hosting. Document this.
  3. Make sure you put a compliant processor agreement in place. The provider should offer one as part of the contract terms. Check it meets GDPR requirements.
  4. You’re likely to need to update your privacy notice, particularly if you’re going to record calls. Provide participants with a short message and link to the privacy notice in the meeting invite and on any registration page.
  5. Create or update other GDPR-mandated documentation – for example, depending on your use, you may need a legitimate interests assessment and to update your record of processing.
  6. Finally, configure and use the system in a secure and compliant way. Look at the settings/options carefully and think through the security and compliance implications of each. That could include deciding who in the meeting can share their screen; whether or not you use passwords for participants; whether or not to record, and if you’re going to record, where to store the recording. Document your decisions and the reasons for them.

The ICO has said it understands that resources, whether they are finances or people, might be diverted away from usual compliance work during the pandemic. However the last thing you need at the moment is to create a bigger problem than the one you are trying to solve. So do the best you can, ask for help from one of our specialists if you need it, and keep the whole thing under review.

On 16 April 2020, Ian Hulme, the ICO’s Director of Assurance, posted a blog for business owners, employers and managers about how to safely roll out the latest video conferencing technology.

On 21 April 2020, the NCSC published security guidance for organisations on choosing, configuring and deploying video conferencing services.

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What agreements will the CMA choose not to take enforcement action in respect of?

CMA guidance suggests that it will not take enforcement action in respect of agreements which:

  • Are appropriate and necessary to avoid a shortage, or ensure security, of supply
  • Are clearly in the public interest
  • Contribute to the benefit or wellbeing of consumers
  • Deal with critical issues that arise as a result of the Covid-19 pandemic
  • Last no longer than is necessary to deal with these critical issues

Last updated on 31st March, 2020