Medical groups seek legal protection from Covid decision-making

Should Doctors get legal protection from medical negligence claims arising out of the COVID-19 pandemic? Our medical negligence lead solicitor, David Gabell, discusses the recent reports surrounding this news and its potential implications.

Several medical organisations have joined forces to lobby the government to bring in legislation that will essentially prevent patients, or their families, from bringing a claim where COVID-19 has had an impact on their treatment, such that they have suffered harm or even death. Principally the concern of such bodies is to protect clinicians where they are having to make decisions as to who gets treatment and who does not, an undeniably horrible predicament for any clinician.

It is without question that our NHS staff deserve praise for their immense hard work, courage, compassion and sacrifice that they have shown throughout this pandemic. It has stretched them to unprecedented levels, and they have risen to the challenge and continue to save lives and nurse patients back to health. Whether it is the cleaners and the porters with unrelenting workloads, or nurses, registrars and consultants managing patients across multiple busy wards dressed head to toe in uncomfortable PPE - they are all deserving of our praise and utmost respect. Of this there can be no question.

However, we must not forget the other brave individuals that have made sacrifices and endured pain and discomfort throughout this pandemic, these are the many thousands of patients that have had their 'non-urgent' treatment withdrawn, delayed or cancelled. It is well understood why this has had to happen, in the face of unprecedented demand on our NHS hospitals, but there is a human cost. Cancer patients have gone without vital therapies, surgical patients have had to endure significant suffering for many months until their surgery can take place, and there are many more examples.

It is in the context of this pandemic, with these two suffering groups of brave individuals, that one must consider the recent request of several medical defence organisations for emergency legislation to allow clinicians to carry out their duties in this pandemic without risk of litigation.

One can see that this request for legal protection would perhaps give clinicians a sense that they have a safety blanket of protection, to be able to make difficult, often life and death decisions, without fear that their judgement might be deemed to be negligent and give rise to a civil claim.

However, that is not quite the full picture. It is important to understand that NHS Trusts are already indemnified by NHS Resolution (NHSR). NHS clinicians are not personally liable for any 'negligent' treatment they provide, that burden rests with NHSR. So clinicians in the NHS have no reason to amend their practice due to a fear of litigation. The guiding principles for any clinician should simply be to do what is in the best interests of their patient in all the circumstances, and to provide reasonable advice and treatment to the best of their abilities. If a clinician fails to follow those principles and a patient is harmed or dies as a result, then a civil claim is entirely justified and indeed likely, regardless of the pandemic.

The circumstances are of course entirely relevant and should be considered on a case-by-case basis. For example, where a surgical patient has suffered horrible pain for six months because their surgeon has opted to delay surgery on account of the COVID-19 demands on the local hospital - it seems reasonable to assume that there was good reason for the clinician to make that decision. The suffering of that patient is regrettable and horrible for the patient and their family, but the decision was reasonable in all the circumstances.

However, where a GP fails to urgently refer a woman to the breast clinic for a suspicious lump because they know that the hospital is under unprecedented pressure due to Coronavirus, a civil claim is likely to be successful if that patient subsequently turns out to have had aggressive cancer and has missed the opportunity for urgent life-saving surgery.

It is entirely reasonable to assume that clinicians will have had to make a great many difficult treatment decisions throughout the course of this pandemic, decisions that they would not have made pre-Covid. However, where those decisions are reasonably in the best interests of the patient in all the circumstances, then that decision is unlikely to be deemed negligent. Where a clinician makes a decision that is unreasonable, disproportionate or not in the best interests of their patient in all of the circumstances, and that patient is harmed or dies, then there should be recourse for a civil claim.

Emergency legislation to effectively suspend access to justice for those that might genuinely be harmed as a result of negligent treatment will naturally attract immense criticism from those working to ensure patients have this access to justice. That said, the high-levels of understandable public support and sympathy for the NHS at this moment could also see many people viewing such legislation as justified.

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