In this article, Isaac Hogarth discusses the issue of the standard of care to be applied to redeployed doctors in a Covid-19 setting. He suggests that legislation would be required to lay down any proposed modifications to the standard of care.
The Coronavirus pandemic is putting an unprecedented strain on NHS services, and on the healthcare professionals providing those services. In addition to the fact that doctors and nurses are facing a personal risk of exposure to Covid-19, in many cases without proper personal protective equipment, doctors are also being required to work outside of their own specialisms in order to enable sufficient cover of Covid, medical, A&E and ICU wards. Whilst the BMA has advised its members not to accept redeployment outside of their competence, in the present crisis, it may be the case that individual doctors have little choice (or feel that they have none).
This raises important questions about the standard of care to which those doctors will be held where they may lack the training or experience that would otherwise be expected. These questions are important both from a patient perspective (in terms of the standard of care they receive) and from a doctor perspective (in terms of knowing what is expected of them). One can easily anticipate the sorts of issues that could arise in an acute setting: missed heart attack, stroke or sepsis, or a failure to diagnose a fracture. What then is the applicable standard of care for a paediatric trainee required to work on an adult respiratory ward? Or a radiologist required to work a shift in A&E?
The law on standard of care
The starting point when considering standard of care in a clinical negligence claim will usually be the test set out in Bolam v Friern Hospital Management Committee  1 WLR 582: was there an act or omission which fell below a proper standard according to a responsible body of medical opinion within the field? The law of tort does not generally make allowances for whether a tortfeasor is experienced or a beginner, as in the learner driver case of Nettleship v Weston  2 QB 691. But can the court make allowances for the particular experience of the individual doctor?
The higher courts have considered the question of whether the experience of the individual doctor can be taken into account when determining if an act or omission constituted a breach of duty. In Wilsher v Essex Area Health Authority  QB 730 (which went to the House of Lords on a separate point), the Court of Appeal had to consider the standard to which a junior doctor, who inserted a catheter into a vein rather than an artery, should be held. There were three alternative arguments on standard of care put before the Court:
- The “team” standard, whereby each person who formed any part of the specialised team would be held to the standard of being able to perform the specialised procedures the unit set out to perform. The Court dismissed this standard, stating “If it seeks to attribute to each individual member of the team a duty to live up to the standards demanded of the unit as a whole, it cannot be right: for it would expose a student nurse to an action in negligence for a failure to possess the skill and experience of a consultant.”
- That the junior doctor ought to be judged to the standard that would reasonably be expected of him with regard to his individual formal qualifications and practical experience. This formulation is of particular interest in the present circumstances. The Court of Appeal rejected this formulation on the following basis:
“If correct, this proposition entails that the standard of care which the patient is entitled to demand will vary according to the chance of recruitment and rostering. The patient’s right to complain of faulty treatment will be more limited if he has been entrusted to the care of a doctor who is a complete novice in the particular field (unless perhaps he can point to some fault of supervision in a person further up the hierarchy) than if he has been in the hands of a doctor who has already spent months on the same ward: and his prospects of holding the health authority vicariously liable for the consequences of any mistreatment will be correspondingly reduced.
To my mind, this notion of a duty tailored to the actor, rather than to the act which he elects to perform, has no place in the law of tort.
To my mind, it would be a false step to subordinate the legitimate expectation of the patient that he will receive from each person concerned with his care a degree of skill appropriate to the task which he undertakes, to an understandable wish to minimise the psychological and financial pressures on hard-pressed young doctors.”
- That the standard be based not on the individual doctor, but on the post they fulfil. It was put as follows: “In a case such as the present, the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service. But, even so, it must be recognised that different posts make different demands. If it is borne in mind that the structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much, the risk of abuse by litigious patients can be mitigated, if not entirely eliminated.”
The third of these tests was adopted, and has since then been the applicable legal test when determining standard of care.
It should be noted that, whilst Mustill LJ refers to the need to make allowance for “battle conditions” where an emergency may overburden the available resources, that is a means of making allowances for errors made by an overstretched clinician with too much to do (“because their attention was distracted by having to do something else at the same time, or because they had to take a difficult decision on the spur of the moment”) rather than changing the standard to allow for cross-cover that would in ordinary circumstances be totally inappropriate.
Wilsher has twice been revisited by the higher courts in recent years, firstly by the Court of Appeal in FB v Princess Alexandra Hospital NHS Trust  EWCA Civ 334, and then more recently by the Supreme Court in Darnley v Croydon Health Services NHS Trust  UKSC 50.
In FB v Rana, a pneumococcal meningitis case, the claimant was a 13-month-old child who attended A&E having been unwell for 11 days. A junior doctor took a detailed history, but that history did not elicit the fact that the claimant’s eyes had been rolling, which it was agreed between the experts would have led to more senior review, IV antibiotics, and would have resulted in a full recovery. The key legal question was the standard at which a Senior House Officer (SHO) was required to take a history in A&E, the judge having found that a more experienced doctor would have asked more specific questions and successfully elicited the key fact.
In her leading judgment, Thirwell LJ stated that what the Court is concerned with in any given case is the particular “task” being performed: “whether it be the delivery of a baby, the examination of a patient, the performing of surgery, the taking of a history and so on”. In her judgment, the standard of competence required in relation to any given task would be the same, whether it is performed by a junior doctor or a consultant. As such, the Court of Appeal concluded that the same facts ought to have been elicited by an SHO as by a consultant, because there is only one standard in relation to each medical task.
Whilst it was not appealed (most probably because the Court also made clear that, even judged by the standard of a reasonably competent SHO, the history was negligent), this judgment has introduced a slightly different test to that set out in Wilsher, where the Court of Appeal had specifically rejected the “team” standard, and settled on a standard judged by the post being fulfilled (with such posts being related to seniority).
In Darnley v Croydon, the claimant had sustained a head injury. He attended A&E and was wrongly informed by a receptionist that he would not be seen for four to five hours, when in fact he would have been seen by a triage nurse within 30 minutes. He went home, collapsed and suffered permanent brain damage. Whilst the receptionist was not a clinician, the Court still considered the question of standard of care. Having made explicit reference to the test in Wilsher, Lord Lloyd-Jones JSC restated the test as follows:
“A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”
That confirms beyond any doubt that the relevant standard of care is judged by reference to the post held by the person who is said to have been negligent.
Consideration of established principles in the context of Covid-19
In the present crisis, for reasons that are understandable (namely higher numbers of adult medical and ICU patients, combined with insufficient staff numbers to cover those wards), doctors who do not normally treat adult medical, A&E or ICU patients are being asked to do so. Anecdotally, this includes doctors who do not generally treat on medical wards at all, such as radiologists and psychiatrists, as well as surgeons being asked to cover medical wards and paediatricians being asked to cover adult wards (albeit that according to NHS England guidance “all redeployed doctors should be appropriately supervised when delivering clinical care”). To state the obvious, it is not only Covid patients who are being treated by these doctors, but also adult patients in general. Doctors who have not done general medical or A&E cover since the very early years of their training may be required to recognise and treat medical emergencies such as strokes and heart attacks, without any or any recent experience in doing so. As noted above, the BMA has advised its members not to accept redeployment outside their competence, although in the real world (and where doctors are trying their best to cover rota gaps), it is probably unrealistic to expect all redeployed doctors to have the relevant up-to-date training. It is inevitable that this will lead to challenges in patient safety, and it is probable that some patients will suffer harm.
The NHS has attempted to guard against this by introducing a series of “COVID-19 rapid” guidelines, some of which are specifically designed for doctors acting outside their own area of specialism. The courts will doubtless be asked to reconsider in the present context whether the Wilsher test can be fair or appropriate when, even exercising reasonable care and skill, doctors and NHS trusts will (in some cases) have been unable to staff wards with suitably experienced medics. It is therefore all but inevitable that defendant trusts will seek to re-argue the second of the tests suggested in Wilsher (i.e. the clinician should be judged with reference to their qualifications and experience) in the context of these Covid-19 cases. The reason for this is obvious: it would enable the Court to make allowance for the fact that a gynaecologist covering A&E might be slower to spot meningitis than an Emergency Medicine consultant.
There are two major problems, however. The first is that (as has been recognised by the Courts in the aforementioned cases), as a matter of generality, a patient’s legitimate expectation in relation to their standard of care ought not to be impacted by the question of their treating doctor’s experience or training. It is otherwise the case, as considered in Wilsher, that a patient’s right to complain will be less if he has been treated by a novice than if he has been treated by an expert. The second is that, as the present law is a common law test that has been carefully formulated by the higher courts (and especially as it has recently been restated by the Supreme Court), it is probably the case that in order to depart from it for reasons of policy, Parliament would be required to legislate. This is particularly likely considering Parliament’s willingness to legislate (with some efficiency) on Covid-related matters in passing the Coronavirus Act 2020. As a matter of general jurisprudence, it should be for Parliament rather than the Courts to legislate in response to an emergency situation. It is notable that whilst the Coronavirus Act contains provisions to ensure that redeployed health workers are indemnified (see section 11(3)(b)), is does nothing to alter the standard of care under which they are required to operate.
It is suggested that any such legislation should be narrow in its terms so as not to curtail important patient rights. Doctors who are fulfilling these posts will still be capable of negligence, even when judged in reference to their own experience. One can easily anticipate claims arising from sepsis, strokes and heart attacks (for example), all of which have extremely accessible treatment protocols which should be readily on hand for anyone on an acute or A&E ward. Patients who suffer harm in such circumstances should not be shut out from bringing claims on account of the current crisis in cases where obvious textbook signs and symptoms were missed (any more than they would be in a non-Covid scenario but in circumstances where one might have sympathy with the treating doctor for some other reason: i.e. the treating doctor had just worked a week of night shifts, or had recently returned from parental leave).
There may be a question as to whether retrospective legislation impacting upon the rights of patients is contrary to their human rights. This is a stand-alone topic worthy of its own consideration, but I would suggest that there would be a sufficient public interest in such legislation (in order to protect the NHS and healthcare workers within it) that retrospective effect would be justified.
Unless or until such legislation, however, the Courts will be bound by the authorities. That being the case, any legislation which is anticipated should be made sooner rather than later in the interests of clarity.