Some 7000 nurses have answered the NHS's call to return to practice to assist with the care and treatment of large numbers of patients infected with COVID-19, many of whom require intensive nursing (Gilroy, 2020). The reconfiguration of services has seen current nurses undergo retraining to allow them to work in intensive care settings and newly established field hospitals.
This combination of returning and inexperienced nurses working in unfamiliar settings, and the overwhelming numbers of patients putting a strain on services, has led to concerns that the NHS could face an unprecedented number of claims for negligence. The Medical Defence Union has called on the Government to grant immunity to NHS staff to prevent these damaging claims (Bowcott, 2020).
This article reviews the arrangements for providing nurses with indemnity against negligence claims and considers whether immunity is needed or likely to be granted.
Negligence
Nurses are generally expected to meet the standard of care set by the profession, employer and the law (Griffith, 2020). In law, the professional standard of care is determined by reference to Bolam v Friern HMC [1957]. Known as the Bolam test, it requires that professionals meet the standard of the ordinary skilled person exercising and professing to have that special skill.
Lord Diplock in R (Burke) v GMC [2005] described a nurse's duty of care as a:
‘Single comprehensive duty covering all the ways you are called on to exercise skill and judgement in improving the mental and physical condition of the patient.’
If a nurse's actions are not in keeping with a respected body of professional opinion, then they will have fallen below the standard required in law and there will be liability in negligence.
The cost of settling claims continues to increase year-on-year in the NHS, with NHS England alone paying some £2.36 billion last year for clinical negligence claims, with legal cost running to billions more (NHS Resolution, 2019).
Indemnity
Nurses are generally indemnified against claims for negligence by their employer. Indeed, the Healthcare and Associated Professionals (Indemnity Arrangements) Order 2014, schedule 1, requires that nurses satisfy the Nursing and Midwifery Council (NMC) that an indemnity arrangement is place for them to continue to work as a registered nurse. This indemnity cover is usually provided by the nurse's employer as part of the employer's vicarious liability.
The flexible arrangements that have been introduced to allow for the rapid deployment of returning nurses and student nurses to a range of traditional and novel roles might have raised doubts about the indemnity arrangements for these individuals. To ensure uniform arrangements across health services, Parliament included indemnity protection in the Coronavirus Act 2020 sections 11–13. In England and Wales, section 11 of the 2020 Act allows for the indemnification of a person providing a relevant service that includes nursing care relating to coronavirus.
Immunity
Provisions are in place for nurses to be indemnified in respect of negligence claims so that their employer is liable for paying compensation awarded as a result of a nurse's negligence. Nurses and the health service are not, however, immune from being sued for negligence.
The demand to grant the health service and its staff immunity from liability in negligence is likely to be extremely difficult to put into practice and very likely to be contrary to the requirements of the European Convention on Human Rights, article 6. In Hill v Chief Constable of West Yorkshire [1988] the judicial committee of the House of Lords held that the police had blanket immunity from claims of negligence in relation to the investigation of a crime. The police successfully relied on that blanket immunity in the later case of Osman v Ferguson [1993] where the court accepted that the police could not be liable for failing to prevent the death of a man, despite having strong evidence that his life was at risk.
When the European Court of Human Rights considered the case it held that the blanket immunity provided by Hill v Chief Constable of West Yorkshire [1988] constituted a disproportionate restriction on a person's right to access a court, in breach of article 6 of the convention (Council of Europe, 1950). As a result, the substantive merits of a case could not be argued before a judge. Therefore, it should always be open for claimants to put their case before a judge and a blanket rule that interfered with this right was not acceptable.
Defence and mitigation
The ruling in Osman would make it very difficult for the Government to introduce blanket immunity for nurses in relation to negligence claims, but the courts do take a more pragmatic approach to claims where available resources are overstretched by accepting a modification to the standard of care in such circumstances to take account of ‘battlefield conditions’. In Wilsher v Essex Health Authority [1988], Lord Mustill approved the decision of the Canadian Supreme Court in Wilson v Swanson (1956) in relation to emergencies where they held that, there was no negligence when a health professional had to make an immediate decision whether to treat, when the treatment was subsequently found to have been unnecessary.
Lord Mustill further held that an emergency may overburden the available resources, and, if a nurse is forced by circumstances to do too many things at once, the fact that they do one of them incorrectly should not lightly be taken as negligence, nor will there be negligence simply because the reasonably competent health professional would have made a different decision, given more time and information.
A law that might finally find a purpose as a result of the COVID-19 pandemic is the Social Action, Responsibility and Heroism Act 2015. This law was enacted to reassure individuals and organisations, such as the NHS, that if a negligence claim is brought against them the court will consider whether their actions:
when determining the standard of care required in a case (Social Action, Responsibility and Heroism Act 2015, sections 2-4).
The 2015 Act has been much criticised as not needed and unhelpful by academics and practitioners because it adds further layers of complexity to the determination of a standard of care in law. It is telling that there are currently no reported cases where the provisions of the 2015 Act have been applied. The COVID-19 pandemic could change that and the Social Action, Responsibility and Heroism Act 2015 is likely to be used to argue that the actions of overtired, overwhelmed or inexperienced staff were for the public good and heroic and that courts should not rush to a finding of negligence in these circumstances.
Conclusion
The COVID-19 pandemic is placing increased strain on an already overstretched health service. The NHS response has been to encourage those who have left the service to return and to reconfigure services. The influx of recent recruits and placing staff in unfamiliar intensive nursing areas has raised concerns about a surge in negligence claims.
The Coronavirus Act 2020 recognises, in part, that nurses must have indemnity arrangements in place to remain on the NMC register and the Act makes provision to extend that indemnity to those involved in the COVID-19 response. The Medical Defence Union has called for the Government to grant immunity to health service staff in relation to negligence claims but to do so would likely be in breach of the European Convention on Human Rights, article 6.
The Courts can, however, modify the standard required to meet a nurse's duty of care where resources are overwhelmed and courts are also required to take account of the Social Action, Responsibility and Heroism Act 2015 when determining the standard of care in such cases. It is unlikely that the courts will rush to a finding of negligence in these unprecedented circumstances.