Key COVID-19 legal developments in the health sector: streamlined governance to respond to an emergency

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Key COVID-19 legal developments in the health sector: streamlined governance to respond to an emergency

Published 24 March 2020

Many organisations are concerned about their abilities to take urgent decisions within the current legislative framework. Whist NHS organisations will remain fully accountable for their decisions and should seek to take decisions as closely as possible to the “business as usual” position where reasonable practicable, it is recognised that modified procedures will be necessary.

Organisations should develop, as part of emergency mitigation plans, a modified governance procedure to allow organisations to adapt to guidance from regulators quickly. Modified procedures should be used only for as long as is necessary and should not seek to completely bypass oversight and scrutiny mechanisms completely.

NHS England have released some guidance on 'Reducing burden and releasing capacity at NHS providers and commissioners to manage the COVID-19 pandemic'.

Engagement with non-executive directors, Council of Governors (where applicable) and stakeholders, as well as consultations should be carried out wherever possible. Where usual engagement cannot be carried out due to urgency, briefings should be periodically prepared so that the appropriate level of scrutiny can take place. This will be particularly important where, for example, executive directors are given increased delegated powers for urgent decision-making.

To enable effective decision-making under the current circumstances, organisations should seek to use technology where possible i.e. holding meetings via virtual conferencing facilities or by phone. Briefings should be circulated by e-mail and key contacts should be put into place, wherever possible, to enable effective communication between decision-makers and stakeholders (e.g. boards of directors and governors). Non-urgent business should be held over and organisations should not seek to enter into material or significant transactions until appropriate oversight can be provided.

There is a significant risk that organisations will face subsequent claims or other legal challenges, which relate to the time in which the pandemic is happening. Therefore, all decisions made as a matter of urgency due to COVID-19 must be appropriately documented to ensure that a sufficient audit trail is created (and can be produced to a court or regulator, if required, at a later date).

Authors

Alistair Robertson

Alistair Robertson

London - Walbrook

+44 (0)20 7894 6020

Anne-Marie Gregory

Anne-Marie Gregory

Bristol

+44(0)117 918 2324

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