Legal liabilities and indemnities in healthcare relating to COVID-19

As this is a fast moving topic, please note that this article is current as at 23/04/20. For further information, please contact Christopher Malla or Amber Anderson.

The COVID-19 pandemic has created an unprecedented challenge for healthcare professionals and the NHS as a whole. We examine the indemnity position, applicable standard of care and the approach of regulators in these unsettling times in an attempt to reassure healthcare providers and healthcare professionals.

Indemnity

Any clinical negligence claim relating to COVID-19 involving NHS patients, would not be against an individual healthcare professional but against the relevant healthcare provider.  The healthcare provider’s membership of the Clinical Negligence Scheme for Trusts (CNST) administered by NHS Resolution will provide an indemnity for any damages and costs payable on NHS related claims.

The Coronavirus Act 2020 requires the Secretary of State for Health and Social Care to provide indemnity for clinical negligence liabilities arising from NHS activities in dealing with the Coronavirus where there is no existing indemnity arrangement in place. NHS Resolution has launched the Clinical Negligence Scheme for Coronavirus which will provide indemnity cover for COVID-19 claims, which are not covered by existing indemnity arrangements.

The new Scheme provides an additional safeguard and is in addition to any existing arrangements already in place. These arrangements should reassure healthcare providers, both in the public and private sector, who are supporting the NHS during this pandemic that there are indemnity arrangements in place should they be required.

Standard of care

The standard of care ordinarily applied in clinical negligence claims remains the Bolam test established in 1956. Whilst subsequent case law has provided clarity (and of course altered the approach in relation to consent claims), the standard remains that of the reasonable healthcare professional in that field. In practice, a course of action can be defended by demonstrating, with the aid of expert evidence, that it was accepted practice by a responsible body of healthcare professionals in that field at the time.

Whilst this has been the basis for the courts’ approach for over 60 years we anticipate the current COVID-19 pandemic will see a departure from this established principle, on the basis it would be unfair to expect healthcare professionals to be judged against a ‘peace time’ standard of care when operating in ‘war-like’ circumstances. How can we apply this standard in the context where healthcare professionals are stretched well beyond normal limits, sometimes brought out of retirement or into the profession early from university, or acting outside their usual field of expertise? The conditions in which healthcare professionals treating COVID-19 patients are operating must surely be taken into account by the courts.

Whilst McNair J may not have envisaged such unusual circumstances, when addressing the jury in Bolam in 1956, he quoted Lord Denning in Roe v Minister for Health [1954] who stated:

"[a] proper sense of proportion requires us to have regard to the conditions in which doctors and hospitals have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure."

Accordingly, McNair J acknowledged the importance of taking into account the circumstances of each individual case.

The courts have already treated emergency situations differently to those in ordinary circumstances. For example, Mustill LJ in Wilsher v Essex Area Health Authority [1987] held:

"I accept that full allowance must be made for the fact that certain aspects of treatment may have to be carried out in… ‘battle conditions’. An emergency may overburden resources and, if an individual is forced by circumstances to do too many things at once, the fact that he does one of them incorrectly should not lightly be taken as negligence."

We consider these unprecedented circumstances must lead to a departure from the norm in any claims involving COVID-19 patients.

The Social Action, Responsibility and Heroism Act 2015

Existing legislation also provides support for contextualising the circumstances surrounding any future COVID-19 claim. The Social Action, Responsibility and Heroism Act 2015 stipulates the matters a court must have regard to when determining whether a healthcare professional has breached their duty of care. These include whether they were acting for the benefit of society or its members, demonstrated a predominantly responsible approach towards protecting the safety of others, or acted heroically by intervening in an emergency to assist an individual in danger.

Regulators

Healthcare regulators recognise that in highly challenging circumstances, healthcare professionals may need to depart from established procedures in order to care for patients. Healthcare regulatory standards are designed to be flexible to provide a framework for decision-making in a wide range of situations. They support healthcare professionals by highlighting the key principles which should be followed, including the need to work cooperatively with colleagues to keep people safe, to practise in line with the best available evidence and to recognise and work within the limits of their competence.

Healthcare regulators have already released a joint statement to explain this and to acknowledge that:

Where a concern is raised about a registered professional, it will always be considered on the specific facts of the case, taking into account the factors relevant to the environment in which the professional is working.

It is important healthcare professionals appreciate healthcare regulators will take extreme circumstances into account and they will be judged in accordance with the challenging environment they are working in. The need to act in line with the principles of good practice set out by the regulators will of course still apply.

Comment

In a positive step, regulators have collectively confirmed they will approach COVID-19 cases in the context of the particular circumstances. How the courts will approach claims remains to be seen. However, we anticipate the approach will be to adapt the Bolam test to take into account the circumstances of the index events and the experience and skills of the healthcare professionals involved. Whatever the approach taken by courts, consistency is key, out of respect to those professionals risking their lives for COVID-19 patients at this difficult time.

Read others items in Healthcare Brief: COVID-19 edition - April 2020

Focus area

Coronavirus (COVID-19)

As developments unfold, Kennedys experts across the world advise on what the COVID-19 pandemic means for you and your business.

Go to focus area