Coronavirus: FAQs for NHS organisations

Following the declaration of a global pandemic and the rapidly escalating confirmed (and likely unconfirmed) cases in the UK, the NHS is understandably preparing for a medical emergency. With that will invariably come legal issues concerning patient rights that our healthcare advisory team have addressed in a list of frequently asked questions:

Detaining patients with COVID-19

In a physical acute setting

1) What powers do healthcare bodies have to detain suspected/confirmed COVID-19 (coronavirus) patients in hospital and what steps should be taken?

Healthcare providers do not have any direct detention powers in this situation.

Regulations from February 2020 (The Health Protection (Coronavirus) Regulations 2020) give the secretary of state or a registered public health consultant the power to detain a person they suspect of having coronavirus for a period of 48 hours or up until the assessment has been completed – whichever is later. This can include for screening, assessment and imposition of any restrictions if there is a reasonable belief that the person may be or is infected or contaminated with coronavirus. Depending upon the outcome of the assessment restrictions can be put in place for longer periods.

The police also have a power under the Regulations to immediately detain a person who they have reasonable grounds to suspect is, or may be, infected or contaminated with coronavirus, might infect or contaminate others and where they believe it is necessary to direct, remove or detain the person in the interests of the person, for the protection of other persons or for the maintenance of public safety. This initial power lasts for up to 24 hours and the police can take the person to hospital or keep them at a hospital they are already in.

The local authority also has the power to make an application to a justice of the peace under the Public Health (Control of Diseases) Act 1984 and the Regulations.

The police, Public Health England (PHE)/directors of PHE in the local authority should be contacted to discuss how such cases should be dealt with. 

The patient should also be reminded of the government guidance.

 (a) Patients with capacity

The patient should be reminded of the government guidance and all the relevant advice e.g. regarding self-isolation, quarantine and risk of transmission etc. This advice should be documented in the patient’s notes and any discharge summary.

The advice from PHE should be obtained and clearly documented in the patient’s notes.

Obtain the patient’s consent (where necessary) to share their coronavirus status with relevant professionals/agencies outside the direct care team. Seek legal advice if consent is not forthcoming before any disclosure is made (see FAQs below).

Follow organisational discharge policy for those patients whose discharge is considered unsafe and seek legal advice.

For vulnerable/homeless patients - liaise with the local authority, signpost the patient to social/support worker (if they have one), homeless/support charities and other relevant agencies and make a safeguarding referral if appropriate (seek advice on information sharing if necessary).

In concerning, urgent, cases it may be appropriate to contact the police with a view to them exercising their powers under the Regulations. 

(b) Patients without capacity

Where the patient lacks relevant mental capacity under the Mental Capacity Act 2005, any decisions in relation to medical investigations, treatment and discharge must be made on their behalf in their best interests.

The capacity assessment should be thoroughly documented and it must be decision specific i.e. to coronavirus investigation/treatment/disclosure of information.

The ‘best interests process’ under section 4 of the Mental Capacity Act 2005 must be followed and documented.

An IMCA should be appointed where necessary.

If any restrictive measures are proposed as part of the investigations/treatment/quarantine which amount to a deprivation of liberty, ensure the authorisation process for the deprivation of liberty safeguarding is followed without delay.

(c) Children

There is no specific advice regarding the decision-making around children with coronavirus and the British Medical Association (BMA) guidance on children and young people should be followed.

In addition to the powers set out above, the Regulations do provide for a responsible adult in relation to a child to secure them to ensure compliance with restrictions so far as is reasonably practical if they are made subject to them under the Regulations.

Legal advice should be sought in appropriate cases. 

In a mental health setting

2) What powers are available to detain when an informal patient is quarantined?

The position is the same 1(a) above where the patient has capacity. In certain cases it may be appropriate to contact the police to consider if they should use their powers to detain the patient under the Regulations.

3) What powers are available with a detained, quarantined patient?

As the patient is detained under the Mental Health Act 1983, then the trust can control the nature of that detention.

Government guidance should be followed about self-isolation and quarantine.

4) What about quarantined children on inpatient wards?

This depends upon whether the child is detained or not. It may be possible to rely on parental consent for younger children. In difficult cases, it may be possible to apply to court under the inherent jurisdiction to authorise any deprivation of liberty which is necessary, but this would be a last resort and would need to be considered very carefully.

The Regulations do provide for a responsible adult in relation to a child to secure them to ensure compliance with restrictions, so far as is reasonably practical, if they are made subject to them under the Regulations.

However, maintaining family relationships is important wherever possible, so give consideration to the practicalities of doing that. For all patients it may be that contact can be maintained by FaceTime, telephone calls etc. rather than visiting in person. 

Staff commitments – inquests

1) Nursing/medical staff are summonsed to attend an inquest in the next month, do they have to attend?

Both doctors and nurses are under an obligation to co-operate with a coronial investigation including attending at an inquest. Failure to attend without reasonable excuse can result in criminal prosecution and on conviction, fines and imprisonment (schedule 5 of the Coroners and Justice Act 2009).

Given the current government advice, coroner’s courts and inquests are unaffected.

The coroner’s service is part of the essential public services carried out by local authorities and as such are unlikely to be unilaterally withdrawn.

Notwithstanding this, staff from ED or intensive care are likely to be required within a clinical setting and this need would form the ‘reasonable excuse’ as required under schedule 5. If these staff members are involved in an inquest in the forthcoming weeks it would be sensible to contact the coroner to ascertain if their attendance could be excused, or their evidence could be read under R23. This might in some instances be impossible (e.g. if those witnesses are integral to the case) in which case applications could be made to adjourn the inquest entirely until such time as the emergency has subsided.

Information sharing

1) What if a patient objects to us sharing a suspicion or diagnosis of coronavirus with others?

Healthcare professionals should follow local policies and procedures for the notification of coronavirus. 

However, the key legal requirements to be aware of are:

(a) The Health Protection (Notification) Regulations 2010

• Coronavirus has been added as a notifiable disease under the Health Protection (Notification) Regulations 2010. Therefore, there is now a duty on registered medical practitioners to notify suspected coronavirus cases to the ‘proper officer’ of the local authority for where the practitioner attended on the patient (i.e. the local health protection team). In urgent cases, such notifications must be made orally as soon as reasonably practicable; in all cases a written notification must be made within three working days of the suspicion arising, including specified information listed in regulation 2(2). This then triggers duties on the local authority to notify PHE and the local authority where the patient resides (if different).
• As there is a legal obligation to make the notification, there is no need to obtain consent from the patient.  However, where possible, it is good practice to inform the patient that the notification is being made.

(b) Other disclosures

• For other disclosures, most patients understand and expect that relevant information must be shared within the direct care team to provide their care, which will cover sharing a suspicion or diagnosis of coronavirus with the direct care team. Most patients will also follow advice on how to minimise the risk of transmission and protect others from infection.
• Should a patient object to such information being shared or refuse to follow advice, in the first instance, patients should be persuaded to do the right thing. If that is not possible, disclosure may be justified in the public interest on a case-by-case basis, taking into account the likelihood and seriousness of harm. This must be proportionate and on a ‘need-to-know’ basis. However, GMC guidance, Confidentiality: disclosing information about serious communicable diseases, confirms (paragraphs 9 and 13):
  • Like everyone else, healthcare workers are entitled to protection from risk of serious harm. But disclosure of information about a patient’s infection status without consent is unlikely to be justified if it would make no difference to the risk of transmission, e.g. if the risk is likely to be managed through the use of universal precautions that are already in place. If the patient continues to refuse to allow you to tell other members of the healthcare team about their infection status, you must abide by their wishes unless you consider that disclosing the information is necessary to protect healthcare workers or other patients from a risk of death or serious harm.
  • You may disclose information to a person who has close contact with a patient who has a serious communicable disease if you have reason to think that:
    • the person is at risk of infection that is likely to result in serious harm; or
    • the patient has not informed them and cannot be persuaded to do so.
• Where the above requirements are met, there is likely to be a lawful basis for disclosure under data protection legislation and the common law duty of confidentiality, in particular:
  • A number of lawful bases under the GDPR could be met, but most relevant is Article 9(2)(i) (processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health); and
  • confidential patient information can be lawfully disclosed in the public interest, without consent, where the benefits to an individual or to society outweigh both the patient’s and the public interest in keeping the information confidential.

This article was updated on 17 March 2020.

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.