By John Tingle
Given the upward trend over the years for National Health Service (NHS) clinical negligence litigation, it is possible that when the COVID-19 crisis abates, people will start to reflect on their care and clinical malpractice cases may result.
Here in the U.K., and elsewhere in the world, life has changed drastically in response to COVID-19. All sorts of new essential measures are taking place within our NHS to make sure that we can handle properly the COVID-19 crisis.
Our NHS system is under intense pressure but it is successfully rising to the challenge. It is doing what it was designed to do back in 1948 when it was established — it is protecting the health of the nation.
The crisis plan
The COVID-19 NHS crisis plan response produced by NHS England and NHS Improvement includes the deployment of final year nursing, medical students, and clinical academics. It will be appropriate and necessary for UK doctors to work beyond their usual disciplinary boundaries and specialties.
The NHS plan states that all appropriate registered nurses, midwives and allied health professionals currently in non-patient facing roles will be asked to support direct clinical practice in the NHS, among other measures.
In addition, the NHS is asking for volunteers:
“The NHS is ‘rallying the troops’ for the war on coronavirus, with volunteers being called up to help vulnerable people stay safe and well at home.”
This crisis plan could introduce the possibility of increased clinical malpractice cases in the future. A patient could argue that a training nurse or doctor caused them injury through their inexperience, that they missed, for example, some key symptoms, or did not properly refer them to a more senior colleague. The circumstances that may cause a claim to be made are myriad, particularly in a crisis.
Role negligence: Tort law
A key issue will be how the courts would view the standard of legal care expected when NHS staff operate outside normal roles, such as when junior staff act up and volunteers pitch in. How will the courts assess, for example, the legal standard of care to be adopted by final year nursing or medical students helping in the current crisis?
There are cases on junior doctors such as Wilsher v Essex Area Health Authority and FB (Suing by her Mother and Litigation Friend (WAC) v Princess Alexandra Hospital NHS Trust which articulate the key legal principles at hand. In the latter case, a junior doctor was found to be negligent in medical history note taking.
Lord Justice Jackson discussed the applicable principles of law. The experience and length of service of the individual nurse or doctor are left out when establishing the legal standard of care. The test is objective. Health care staff are to be judged by the standard of skill and care appropriate to the post they fulfill and the tasks they perform.
Eloise Power argues that a possible judicial approach to establishing a legal standard of care during the coronavirus pandemic can be found in the case of Mulholland v Medway NHS Foundation Trust. The judgment indicates the importance of considering the context and circumstances when establishing a standard of care. It reads, in part, “the standard of care owed by an A&E [Accident and Emergency] doctor must be calibrated in a manner reflecting reality.”
Clinical negligence is, in practice, a hard matter to establish. If malpractice cases result from the present crisis, they will be tested in relation to objective standards of care.
The courts will consider all the facts and circumstances of the case, including that the health care staff were acting in a crisis.
Considering past cases and the law’s approach, the importance of clinical guidelines, protocols, staff training, competence assessment, and induction assumes a vital significance, and all steps need to be fully documented. Documentation of steps taken in all these matters will prove crucial in defending any cases brought.