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December 9th 2020

Medical Negligence

Have patients been failed by the Government during Covid-19 and was it negligence? The key issues and questions to be considered by the courts

Have patients been failed by the Government during Covid-19 and was it negligence? The key issues and questions to be considered by the courts

In the first of a series of articles, medical negligence solicitor Sharon Lam shares her thoughts on the impact of Covid-19 on healthcare services and looks at key questions which could be considered in the courts.

In the first of a series of articles, medical negligence solicitor Sharon Lam shares her thoughts on the impact of Covid-19 on healthcare services and looks at key questions which could be considered in the courts.

As we continue through the coronavirus pandemic, our healthcare system remains under immense pressure due to Covid-19.

A long and difficult winter still lies ahead for our country, our healthcare system, and thousands of patients with other life affecting conditions.

We may finally be getting a grip on Covid-19, but the impact on the nation’s health has unfortunately stretched far beyond that of coronavirus infections in 2020.

Throughout the pandemic outbreak coronavirus patients who have needed specialist care have thankfully benefitted from treatment by dedicated and brave NHS staff. This, however, has largely happened at the expense of non-Covid-19 patients.

Whilst the daily figures on death rates from coronavirus have been published for us all to consider, the longer term impact for those who have missed crucial appointments and treatment for other conditions is still to unfold and become clear.

At Hudgell Solicitors we have been supporting clients who have not been able to benefit from their normal rehabilitation following surgeries, orthopaedic surgeries being cancelled and patients who have been turned away or had appointments postponed. This picture has been seen across primary, community and mental health services. For cases where liability was admitted, we were able to obtain interim payment so our clients could access rehabilitation and treatment on a private basis.

Elsewhere, calls for enquiries against the Department for Health and Social Care arising from its management of the response to the coronavirus are high on the agenda, and once the dust has settled on this most awful period of time, serious questions will need to be asked.

It is possible that the matter could end up in the courts, and we could see judges making decisions claims relating to alleged clinical negligence over this period.

I believe there will be a number of key areas to examine, including

  • How were decisions made when choosing to treat Covid patients over others?
  • Can those decisions be justified in law?
  • What standard of care is to be expected from the clinicians when it comes to mistakes made under the pressures of a pandemic?
  • Should clinicians who are required to work beyond their expertise be expected to meet the standard of skill and care appropriate to the role they were filling?

I have written about each of these issues and given my thoughts as to what could happen in a legal context, starting by considering the huge issue of how thousands of people have faced months of delays for vital tests and treatment related to other potentially life-threatening conditions.

By what metrics should medical professionals chose one patient over another in a pandemic?

Ever since going into national lockdown in March, treating Covid-19 and preventing transmission of the virus had been the priority of the NHS, and when we came out of that first full lockdown, it was pledged that our health services would redouble their focus on the needs of all other patients.

However, the second wave of hospital admissions in October put that effort to a halt and it is clear there has never been a return to near-normal level as was hoped.

The pandemic has had a particular impact on cancer patients or suspected cancer patients. Many have had their treatment delayed or suspended. Some were too afraid to come forward for diagnostic tests for fear of insufficient diagnostic capacity provided in a Covid-secure environment, or due to a desire to ease NHS burden.

Compared to the pre-pandemic level, there has been increasing number of patients waiting for diagnostics and/or treatment longer than the recommended 62 days on an urgent pathway, or over 31 days on a treatment pathway (a maximum one month wait from the date a decision to treat is made for all cancers).

Moreover, many patients whose planned care or treatment has been disrupted by the pandemic have not received clear communication about how they will be looked after, and who to contact in the event that their clinical circumstances changing or deteriorating.

There has been little evidence of any coherent system for the NHS to identify clinically urgent patients for priority treatment. This is worrying, because a substantial delay in treatment or diagnosis for these patients is usually associated with a less favourable outcome.

Many other procedures and investigations have also been postponed because of shortages of NHS staff due to re-allocation or absence, including the cancellation of many elective surgery procedures.

The huge impact of the pandemic on board clinical decision making with regards to patient care simply cannot be underestimated and I imagine there are likely to be potential claims from non-Covid patients who have not received treatment because Covid patients have been prioritised, or because they have suffered harm due to delays in treatment or diagnosis. We have had patients whose treatment was inexplicably delayed for months even after delay in diagnosis was identified by the hospital.

Ordinarily, before the onset of the pandemic, such delays would be considered unacceptable and a breach of duty of care; but of course, this year the resource implications of the pandemic would be taken into account by the court when considering the issue of liability.

This is likely to be difficult for the court to consider. For example,. by what metrics should medical professionals prioritise one patient over another in circumstances where demand for intensive care resources is stretched?

There are few comparable clinical negligence cases to put this into context.

However, in the context of injunction, in a recent case concerning the allocation of NHS resources during the current pandemic, University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB) Chamberlain J granted an injunction requiring a patient to vacate a hospital bed. When dealing with the resources question, Chamberlain J considers:-

“Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering … It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case…”

Whilst this case did not involve the issue of common law duty of care, it is possible that the court could likewise take into account the unprecedented strain on NHS resources at present when it considers the standard of care, assuming there is sufficient evidence to justify the decision based on “informed clinical assessment”.

Theoretically at least, legal challenges via judicial review can be made over any alleged failure by the Government and NHS England to publish any national policy framework setting out how decisions regarding priorities and the allocation of limited resources should be made.

On March 20th 2020, the National Institute for Health and Care Excellence (NICE) produced guideline NG159, which contained a critical care referral algorithm to support such decision making.

It will be interesting to see whether individual hospitals complied with the guidelines when their capacities became overwhelmed, and in the decisions they made to defer some treatment.

Part two looks at ‘duty of care’ to patients and asking by what standard clinicians should be measured against for the care provided in the intense pressure of a pandemic.

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