As noted in the recent NHS toolkit on access to GP services the Coronavirus pandemic has super charged the use of remote consultations and reviews in primary care.1 We outline below some of the legal considerations for practices on remote reviews for practitioners.
Pre-Coronavirus, despite 340 million appointments a year being held with GPs and other practice staff, only 1% were carried out by video.2 As the pandemic emerged GPs were urged to switch to digital reviews to help combat the crisis. By the end of May 2020, 99% of GP practices were activating remote review platforms.3
Whilst for some practices, remote reviews are a completely new mechanism for providing care to patients, others may be adapting from a phone call to video and for some remote reviews will have been a part of your usual routine for some time.4 Many practices will be involved in Primary Care Networks who have taken on the new Structured Medication Review (SMR) and Medicines Optimisation service as part of the PCN Contract Directed Enhanced Service (DES) which comes into effect from October 2020. Dispensing practices will be aware that the Dispensary Services Quality Scheme (DSQS) which involves medicines reviews has been reinstated from 1 August 2020 for participating practices. Under both of the SMR, DES and DSQS schemes, the requirements to review the appropriateness of individual patients’ medicines is a key feature.
Contractually under NHS General Medical Services and Personal Medical Services contractual arrangements the basic obligation has been to provide (in core hours) the services appropriate to meet the reasonable needs of the practices’ patients. It has been for GP practices themselves to decide how best to do so (in discussion with the patients). The Coronavirus pandemic has not removed this contractual obligation. In practice, however, the expectation during the pandemic has been that these needs will be met in many instances by online consultations. The expectation, although not yet a contractual requirement, is that online reviews and consultations will become a permanent feature of primary care. It remains to be seen whether Medicine Use Reviews by community pharmacies will move to online provision, in a similar way to the changes seen in general practice.
On 9 July 2020 NHS England wrote to all practices noting that digital consultation should be offered as standard unless there are good clinical reasons otherwise. In September, practices were reminded that face-to-face appointments must be offered, and that no practice should be closed to patients. However, in line with NHS England’s expectations of contractual performance, many more consultations and reviews than ever before will be undertaken by GPs, Pharmacists and Nurses using digital technology and remotely.
There is a widespread perception that the freedoms in relation to GDPR were “loosened” because of the Coronavirus crisis. However, this perception does not reflect the legal position. There were a number of directions made by the Secretary of State for Health and Social Care which created additional permission and requirements for the sharing of health data between institutions and bodies in reaction to the pandemic. However, the “normal” pre-Coronavirus position under data protection law and the laws of confidence has remained in place for most clinical settings. Health data (sensitive data as it was once known, and now “special category data” under GDPR) can only be shared in accordance with well-established grounds.
The main concerns for practices going forward, especially those in primary care networks with medicine reviews will be:
- ensuring practices are clear who will be accessing patient data to perform the reviews, and that this is appropriately documented (including if needed in the practice privacy statement);
- considering how and where reviews and consultations take place to ensure the confidentiality and dignity of patients is maintained.
GDPR and the return to “business as usual” as the reaction to the Coronavirus pandemic changes do not represent barriers to remote reviews in the future. Indeed, were it to be so, many clinicians would see this as a detriment to patient care, having seen benefits from this new way of working. The direction of travel before Coronavirus was for greater use of digital technology, which was a key feature of the GP Forward View published back in 2016. The pandemic has pushed forward developments which have been underway in many areas for some time.
Whether a review involving patients is held remotely or face to face, healthcare practitioners have a duty of care to patients recognised by law and by regulators. This duty is undiminished by the mechanism of review undertaken, and as much care needs to be taken using remote means as was undertaken in face-to face settings (including addressing issues such as capacity and consent for treatments/changes to medicines).
Linked to this is that whether the review is face to face or remote, documentation is imperative and for example, the GMC states that you ‘must record your work clearly, accurately and legibly.'5 Not only is it crucial to document the usual history, examination (limited in remote reviews), and treatment decisions, but the method of review and consent for the review to be online should be clear. Particularly given the recent ‘contractual expectations’ letter from NHS England, it is important to clearly document the patient’s consent to participate in a virtual review, and any problems/limitations encountered.
As with face to face reviews, documentation should be completed during the review as appropriate or as soon as possible after. Records containing personal information should be stored securely in line with data protection law requirements in the normal way.6
- Ensure that the patient is happy to proceed with a remote review and document this and all aspects of reviews as you would have done face to face;
- Consider whether a face-to-face review may be required to comply with your duty of care;
- If you are managing a practice, ensure that any changes to working arrangements are considered from a data security point of view, and that privacy statements for practices are updated as may be needed, and any data sharing arrangements as required are included.
- NHS Volunteer Responders, Access to general practice communications toolkit, Septmeber 2020