During the daily government COVID-19 briefing on April 27, health secretary Matt Hancock announced the introduction of a NHS life assurance scheme to provide a lump sum payment of £60,000 to the family of any NHS or social care worker who dies from COVID-19 "in the course of their essential frontline work".
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 NHS England chief pharmaceutical officer Keith Ridge.
The NHS Business Services Authority (NHS BSA) has 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 health secretary must be reasonably satisfied that:
- COVID-19 was the sole or 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
While 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 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 health secretary must be “reasonably satisfied” that:
(i) It was “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 health secretary 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 health secretary does not intend to make it difficult for beneficiaries to claim.
In addition, the regulations contain a further clause providing that the health secretary 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 statement in the regulations that “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 while 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 state that “as the employer, you’ll oversee the completion of the claim form and payment details”.
Andrea James is a healthcare lawyer at Brabners LLP Law Firm
In the unlikely event of a claim under the scheme being refused by the health secretary, 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 Andrea James at [email protected]