Here, Henry Charles, Michael Brace and Lizzie Boulden explain why they consider that COVID-19 related clinical negligence claims arising out of redeployed healthcare professionals are unlikely to succeed on the present law. This should provide considerable comfort to healthcare professionals who are not only bravely risking their lives, but who are also working in unfamiliar roles in the national effort to fight the pandemic.
We acknowledge and applaud the brave and selfless work being done by support staff, nurses and clinicians. Neither they nor the NHS should be looking over their shoulders for claims in these difficult times. The emergency powers provide for indemnity for personal injury claims in tort arising out of the current circumstances [1]. However, whilst there are presently no claims, it still leaves the providers of the indemnities i.e. NHS Resolution, private hospitals and others exposed, and the clinicians, nurses and support staff would still be faced with the burden of a claim if one was brought.
Sadly, we hear that some lawyers may be trying to create interest in clinical negligence claims arising out of COVID-19, in particular, we presume, from the redeployment of clinicians and nurses, and the use of junior clinicians and nurses and support staff offering related services in more senior or very different positions. We suggest that those claims are likely to fail, and rightly so, even without any change in the law.
It is worth pointing out that, even before we get to the legal principles likely to protect clinicians in these circumstances, there is, in any event, little scope for clinical negligence claims in this period. Treating COVID-19 patients and preventing transmission of the virus are the priority: elective surgery had been cancelled until last week, A&E admissions are said to be decreased, and the general public is wary of attending medical institutions due to fear of virus spread combined with a desire to ease the burden on the NHS. Quite rightly, the public is aware that the NHS is working in difficult and unprecedented times.
Why COVID-19 related claims are likely to fail on the current law
We would suggest that a “triple lock” of three legal principles are available to be deployed which give considerable comfort: the “rescuer principle”, a potentially modified standard of care in relation to COVID-19 wards, and the “Act of God” principle.
Let us take an example where it is feared that proceedings could successfully be pursued. Assume the case of a consultant psychiatrist who has to be deployed to A & E because otherwise there would be no medical cover; however, the psychiatrist has not worked in A & E for 30 years. A patient is wrongly triaged and suffers a worse outcome than s/he would otherwise have done. In ordinary terms, there has been Bolam negligence.
The starting point is that any patient in a hospital is owed a duty of care. The issue is the standard of care required. The issue of the experience of the clinician in relation to the standard of care to be expected in his or her given role has occupied the Courts for many years. In Wilsher v Essex Health Authority [1987] Q.B. 730, it was held that the length of experience of the clinician was not relevant, and the duty of care related not to the individual but to the post they occupied. A houseman had failed to reach this standard by failing to notice a patient’s spitting and pooling of saliva, in simply accepting what the patient’s representative said and failing to obtain a proper case history, thereby failing to elicit details of a difficulty in swallowing which would reasonably have required him to detain the patient pending examination by an ENT specialist. It was probable that such further investigation would have revealed the condition and that treatment at that stage would have avoided brain damage.
In FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, the Court of Appeal overturned Mr Justice Jay’s decision that only a senior doctor would have had the expertise to apprehend the claimant’s developing problem. At paragraphs 59-60, Jackson LJ noted:
“59. In Wilsher v Essex AHA [1987] 1 QB 730 the Court of Appeal for the first time gave detailed consideration to the standard of care required of a junior doctor. (This issue did not arise in the subsequent appeal to the House of Lords). The majority of the court held that a hospital doctor should be judged by the standard of skill and care appropriate to the post which he or she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the doctor or their length of service. This analysis works in the context of a hospital, where there is a clear hierarchy with consultants at the top, then registrars and below them various levels of junior doctors. Whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority or health trust is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.
60. Thus in professional negligence, as in the general law of negligence, the standard of care which the law requires is an imperfect compromise. It achieves a balance between the interests of society and fairness to the individual practitioner.”
That view was reiterated in the context of the facts of the case at paragraph 63: “The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent SHO in an accident and emergency department. The fact that Dr Rushd was aged 25 and “relatively inexperienced” (witness statement paragraph 5) does not diminish the required standard of skill and care. On the other hand, the fact that she had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.”
The law thus requires a standard no higher, and no lower, than a reasonably competent healthcare professional of the role which is being fulfilled.
The “triple lock”
Having considered the existing formulation of the standard of care in clinical negligence cases, we will turn to consider how the law allows for variations in the standard of care, as well as other protections, which we suggest would apply to the current emergency circumstances.
(1) The “rescuer principle”
The “rescuer principle” is a term that we use to indicate modifications to the standard of care which arise from the fact that currently redeployed NHS healthcare professionals are acting for the public good in the face of an emergency. In essence, this principle allows for a relaxation of the standard of care where individuals are working in an unprecedented emergency; its purpose being to prevent a fear of liability acting as a brake on such activity.
The legal source of this principle is the Social Action, Responsibility and Heroism Act 2015. Section 1 of the Act states that it applies “when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care”. Sections 2-4 detail matters which the court must have regard to, relating to the circumstances of the alleged breach of duty: whether it occurred when the person was acting for the benefit of society or any of its members, whether the person demonstrated a predominantly responsible approach towards protecting the safety or other interests of others, and whether that person was acting heroically by intervening in an emergency to assist an individual in danger. It is suggested that all 3 of these criteria are met in the situation of healthcare professionals redeployed during the COVID-19 crisis; it is difficult to contemplate how this Act would not apply to the current circumstances.
Assistance can also be drawn from section 1 of the Compensation Act 2006, which provides that, when considering breach of duty, the court may have regard to whether the steps that should have been taken by the defendant to meet a standard of care might either prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity. Whilst this does not strictly apply to the current circumstances, in that healthcare professionals clearly do not fail to carry out desirable activities in respect of treating patients, it does give a clear indication that the standard of care has limits. It suggests that in certain cases, the rights of individuals to be compensated for their loss is trumped by the necessity of defendants not being deterred from carrying out important activities. It is submitted that again, this is applicable to the situation at hand.
This principle has also appeared in case law, for example in Marshall v Osmond [1982] Q.B. 857, which involved a police officer whose driving caused injury to a passenger of a vehicle he was pursuing. In the first instance decision in this case, it was held that the defendant’s “actions must not be judged by standards which would be applicable if the situation were such that the officer had time to consider all possible alternative courses of action that he could have taken to discharge his duty successfully“. The Court of Appeal ([1983] Q.B. 1034) upheld the first instance decision, finding that there had been an error of judgment, but considering that there was not negligence. Sir John Donaldson M.R. referred to the circumstances of the collision, including that the officer was working in stressful circumstances. Therefore, it is suggested that, as per the case of Marshall, in the hypothetical scenario of the psychiatrist incorrectly triaging a patient, this is more likely to be seen as a mere error of judgment.
(2) Modified standard of care in relation to COVID-19 wards
Looking at the case of Wilsher v Essex Health Authority, arguably the principle of healthcare professionals being “judged by reference to the post which they are fulfilling at the material time” may acquire a particular definition in relation to the treatment of COVID-19 patients.
COVID-19 wards are new entities, and are necessarily staffed by practitioners from different original specialisms. Whilst these wards may have started as respiratory wards, in the circumstances of the pandemic, particular experience or specialism is not required in order to work there. These wards have been in existence only a matter of weeks, and therefore, understandably, do not have the same reservoir of expertise which would be relevant to the standard of care in say, a specialist oncology ward. Further, whilst the standard of care to be expected would be influenced by accepted practice or treatment policy in the area, it is clear that there is much disagreement within the scientific community regarding this new virus. Therefore, in legal terms, the standard of care is likely to differ for a COVID-19 ward when compared to another specialist ward, and, in practical terms, it may well be a challenge for anyone to acquire expert evidence which expresses best practice with any certainty (there would very likely be a wide range of divergent views).
Likewise, in non-COVID wards, we suggest that comment in any expert evidence is very likely to take into account the prevailing situation. It is expected that added consideration would be given to issues about time pressures, the numbers of staff, and the increased measures needing to be taken to avoid the spread of coronavirus, for example the use of personal protective equipment (PPE).
(3) “Act of God”/Novus Actus Interveniens
Finally, there is “Act of God”, a branch of force majeure – a largely, but not entirely, contractual principle, which may alternatively viewed as a novus actus interveniens. An “Act of God” must be wholly the consequence of natural causes, be of an extraordinary nature, and be such that it would not be anticipated or provided against by the party seeking to rely on it [2]. In the law of tort, “Act of God” has been used in, for example, Ryan v Youngs [1938] 1 All ER 522, in which a lorry driver, an apparently healthy man and a competent driver, died at the wheel, the lorry then ploughing on and injuring the claimant. As to the scale of the challenge represented, it must be unprecedented or extraordinary: see Nichols v Marsland (1876) 2 Ex D1, which involved an extraordinary flood. This country has not experienced anything like COVID-19 for the last hundred years. That leaves the third hurdle that the “Act of God” could not have been provided for. In Nichols v Marsland, it was held that, although protective measures would have been capable of affording protection, the defendant could not reasonably be asked to prepare against the unprecedented. However, in respect of a hospital trust, COVID-19 may well fit within “Act of God”, whether directly or in informing the standard of the duty of care to be applied. We do acknowledge that, given a repetition of COVID-19, this argument might well crumble.
Breach of duty
None of these three principles excludes there being a duty of care. It is possible that, even within the context of COVID-19, there may still be a handful of instances of breach of duty, which, even on the most generous interpretation, would be indefensible to any right-minded person.
We also bear in mind that cases may include outcomes from a basic failure to provide for PPE, although this is unlikely to be the fault of any individual practitioner.
Modification to the test
So, to returning to our earlier example, the test becomes one of what one might expect of a psychiatrist redeployed to A&E, acting under force majeure or as a rescuer. Understandably, there would be very, very generous latitude. We would suggest that a court would have little difficulty in the vast majority of cases finding perhaps error of judgment, but not breach of duty, especially on new COVID-19 wards.
It is also worthwhile taking a more nuanced example, one where on the face of FB v Princess Alexandra Hospital, liability is harder to avoid. Let us assume, for example, two ST3 doctors are covering a busy A & E ward with no available A&E consultant and a 33% staffing-level because of COVID-19, one of whom makes a similar error to that made in FB v Princess Alexandra Hospital due to time pressure and evident fatigue. Let us further assume that the hospital is not guilty of any failure of resource management. The same principles can be applied. We would suggest that, on these facts, the claim would be unlikely to succeed.
Summary
We are suggesting that in the “rescuer principle”, modification to the standard of care for COVID-19 wards, and force majeure/”Act of God”, there is a “triple lock” of established principles that should largely reduce the burden on the health services arising from clinical negligence claims in the present emergency context. The key to use of existing principles, in a way that is almost Caparo v Dickman from the other end of the telescope, is that we are in abnormal circumstances.
The “triple lock” of tests avoids the complete abrogation of standard of care – there may well be the occasional cases where something really has gone terribly and very avoidably wrong. Additionally, it would not, on public policy grounds, seem particularly sensible to abandon all standards.
Doctors, nurses and other healthcare professionals are facing enough uncertainty in these challenging times, without the fear of their actions being unfairly judged in the future. Hopefully, some comfort can be gained from the notion that the current law provides them with these protections.
[1] Very broadly, section 11, Coronavirus Act 2020 provides for indemnification not only for those not already beneficiaries of an NHS indemnity who are dealing with a coronavirus patient/suspected coronavirus patient, but also those providing cover.
[2] Charlesworth & Percy on Negligence, 14th Edition, at 14-36
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