Chemist+Druggist magazine recently asked me to explain the legal issues around the government’s life assurance scheme for those working in community pharmacy and how easy or difficult it might be to make a successful claim. The blog which follows was originally published by Chemist+Druggist.
During the daily Government update on 27 April, Secretary of State for Health and Social Care (“SoS”), Matt Hancock, announced the introduction of a new life assurance scheme to provide lump sum payments of £60,000 following the death of any NHS or social care worker dying “in the course of their essential frontline work” during the COVID-19 pandemic.
The scheme initially included those working in the GP and dental limbs of primary care, but excluded those working in community pharmacy. This decision was promptly reversed following an outcry across the sector, including intervention by Chief Pharmaceutical Officer Keith Ridge.
The NHS Business Services Authority has now published details of the scheme, which is called The NHS and Social Care Coronavirus Life Assurance Scheme 2020. In order for a claim to be granted, the SoS must be reasonably satisfied that:
• COVID-19 was the sole or a main cause of the individual’s death;
• the individual was exposed to a high risk of contracting COVID-19 in circumstances where they could not reasonably avoid that risk, because of the nature and location of their work;
• the individual contracted COVID-19 in the course of their work.
Whilst it should be relatively easy to establish the first two criteria, some have expressed concern regarding the potential difficulty in establishing that a deceased individual contracted COVID-19 at work, particularly if they worked in a community pharmacy rather than, for example, a hospital setting where it could be definitively proven that patients with COVID-19 had been admitted.
However, my interpretation of the legal regulations accompanying the scheme is that they are not unduly onerous, particularly bearing in mind that the scheme distributes public funds.
When considering an application from the beneficiary of a deceased individual who worked in community pharmacy, the precise test to be applied is that the SoS must be reasonably satisfied that:
(i) it is likely that the individual contracted COVID-19 in the course of their work;
(ii) the individual first exhibited symptoms of COVID-19
(a) within the period of 14 days, or
(b) such other period as the SoS may consider on the basis of medical evidence,
of being exposed to COVID-19 in the course of their work.
Having regard to the wording used in the regulations (e.g. “likely” and “reasonably satisfied” rather than “proven” or “established beyond real doubt”), my impression is that the SoS does not intend to make it difficult for beneficiaries to claim. In addition, the regulations contain a further clause providing that the SoS may, in exceptional circumstances, award the lump sum payment even if the deceased was not strictly an eligible individual (as legally defined), but it is right for them to be included “having regard to the preamble and the purposes of the scheme”. This clause is perhaps the strongest indication of the intention to behave reasonably and fulfil the SoS’s statement made when the scheme was announced, namely “It is only right that extra assurance is given to these workers on the frontline of the medical response to the pandemic”.
The regulations also provide a right of appeal where a claim is refused and refusal decisions could ultimately be challenged via legal proceedings if necessary, as a last resort.
My hope and impression is that the families of those who contracted and died from COVID-19 whilst working in community pharmacy should not encounter any significant difficulty in making a successful claim.
An important point for contractors to bear in mind is that employers are expected to play a leading role in administering the scheme and are asked to inform all employees and next of kin about it. Indeed, the scheme rules specifically provide that “As the employer, you’ll oversee the completion of the claim form and payment details”.
In the unlikely event of a claim under the scheme being refused by the SoS, Brabners LLP will be happy to provide a pro bono (no charge) legal opinion on this decision to the family of any deceased pharmacist, pharmacy technician or pharmacy worker. In the first instance, please contact me, Andrea James, at andrea.james@brabners.com