As the COVID-19 pandemic continues, the issue of clinical negligence claims being brought by those who have lost loved ones is being raised. Looking at the general media over the years, with repeated major NHS patient safety crises, high levels of clinical negligence claims and costs, there does seem to be a greater public awareness over compensation rights and to holding health professionals to account for their care treatment decisions. Given this heightened public awareness of the right to sue for clinical negligence, it is inevitable that in time people would consider taking legal action against the NHS for improper, negligent COVID-19 treatment. Robinson (2020) notes:
‘Grieving families of patients who have died after contracting coronavirus are exploring the possibility of taking the NHS to court, as unions warn litigation threats are piling added pressure on already stressed medics. At least 17 families whose loved ones have died during the COVID-19 pandemic are considering legal action against the NHS …’
Establishing clinical negligence
In practice, even in normal times, clinical negligence is a hard matter to establish and it is a complicated area of tort law. In the COVID-19 pandemic there will be difficult legal issues raised because nurses, doctors and others have been working in crisis conditions and some in unfamiliar clinical areas. One issue is the legal standard of care to be applied in redeployment, with nurses and doctors practising outside their usual clinical area.
Formulating the standard of care
Hogarth (2020) discusses the redeployment of doctors:
‘One can easily anticipate the sort of issues that could arise in an acute setting: missed heart attack, stroke, or sepsis … 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?’
Hogarth reviews the central legal authorities in this area and the recent Supreme Court case of Darnley v Croydon Health Services NHS Trust [2018] UKSC 50. He concludes on the Court's approach to setting the standard of care in a COVID-19 situation where doctors are working in unfamiliar clinical environments:
‘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.’
The same reasoning would apply to nurses and other health professionals.
The courts would look at who would normally occupy the post being filled and the tasks elected to be performed. They would not, according to the present case law, factor into their reasoning aspects such as the experience, seniority, length of service of the nurse or doctor. Giliker (2017) states:
‘In Wilsher v Essex AHA it was confirmed that the standard of care to be expected from a professionally qualified defendant is to be determined by considering the nature of his or her “post” and the tasks which it involves.’
Considering the context
Another key related issue is whether the courts would take account of the context of care, the environment, when formulating the standard of care. Such issues as whether the unit was busy or not, the time of day, staff compliment and availability of resources.
The case of Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB) is instructive on this point.
Mr Justice Green discussed the legal significance of the context of the care environment and whether a nurse acted reasonably and professionally:
‘In forming a conclusion about the conduct of a practitioner working within triage within an A&E department context cannot be ignored. The assessment of breach of duty is not an abstract exercise but one formed within a context—which here is that of a busy A&E where the task of the triaging nurse is to make a quick judgment call as to where next to send the patient.’
The fact that this was a busy emergency department was a relevant factor to consider.
Sanderson v Guy's and St Thomas' NHS Foundation Trust [2020] EWHC 20 (QB) is another case on this point. This case concerned electronic fetal monitoring, delays and birth injury. No negligence was found.
Mrs Justice Lambert stated in the case:
‘Nor do I find that no good explanation for the time taken away from Room 4 was provided by the Defendant. The explanation, if one is needed, is provided by the circumstances on the Unit at the time. Mr Preston accepts that I should keep in mind the practical difficulties “in the real world” of limited staff being available but on my assessment of the evidence, his submission that Ms Bewley took an unreasonably long time collecting the equipment and speaking with colleagues fails to acknowledge, or at least sufficiently acknowledge, the real world of the Unit that night”
The context, the environment, of care was a relevant factor to consider in this case. The fact that nurses and doctors and others are working in a ‘war zone’ with COVID-19 in unfamiliar clinical environments, means that the care context cannot, in my view, be ignored.
Charles et al (2020) provide perspective:
‘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.’
Clinical negligence in coronavirus
A Clinical Negligence Scheme for Coronavirus (CNSC) has been launched by NHS Resolution (2020a). The scheme is designed to meet any liabilities arising out of the special arrangements that have been put in place to deal with COVID-19. The new scheme complements the existing indemnity schemes operated by NHS Resolution such as the Clinical Negligence Scheme for Trusts (CNST) or for General Practice (CNSGP). The scheme has been established in accordance with new powers from the Coronavirus Act 2020:
‘It will provide additional indemnity coverage for clinical negligence liabilities that may arise when healthcare workers and others are working as part of the coronavirus response, or undertaking NHS work to backfill others, in the event that existing arrangements (CNST, CNSGP or individual arrangements) do not cover a particular activity.’
Coronavirus outbreak indemnity
NHS Resolution has also provided helpful coronavirus outbreak indemnity FAQs (NHS Resolution, 2020b), an excellent resource for nurses and doctors.
Clinical guidelines and the law
This case of Sanderson v Guy's and St Thomas' NHS Foundation Trust [2020] also has some judicial statements on the use of clinical guidelines and clinical judgement. Mrs Justice Lambert stated:
‘On the critical question for my determination, the Guidelines point in two, entirely different, management directions.’
Mrs Justice Lambert further stated:
‘The Guidelines are useful so far as they go, but they are limited. The Guidelines do not provide a substitute for clinical judgement but must be interpreted by the clinician and then applied in the light of that judgement.’
This clearly is the legal position with using clinical guidelines and it is well-established law going back many years that a clinician does not suspend clinical judgement. They are guidelines and not ‘tramlines’.
Clinical guidelines should also always have a built-in review date, otherwise as it has taken time and hard work to develop a guideline, its authors may be reluctant to change it.
Clinical guidelines could well be scrutinised in a court of law. It is important that they are seen to be current, based on best evidence and practice and are reviewable.
The Bolam test
The fundamental point to remember about clinical guidelines is the Bolam test, which stems from Mr Justice McNair's jury direction in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 at 587:
‘Ultimately, Bolam will be the relevant test applied. The treatment will not be negligent if supported by a reasonable body of practitioners, even if there is a body of opinion and as in this case, conflicting NICE Guidelines, offering a contrary view.’
Conclusion
The COVID-19 pandemic is resulting in some grieving families of patients who have died exploring the possibility of taking the NHS to court. Clinical negligence is a hard matter to establish. The context of care delivery should also be a relevant factor for the Court to consider when setting the standard of care to be adopted in a clinical negligence case.