The COVID-19 pandemic continues to raise a myriad of ethical, legal, and patient and staff safety issues. Unfortunately, there is little time to reflect on these. We are in the middle of a war and, as the virus rages on, new situations develop demanding quick reactions. Health professionals are heroically working in challenging environments and adjustments to traditional working practices often need to be made urgently. These include working in less than satisfactory environments often without some necessary personal protective equipment (PPE):
‘In a significant U-turn, PHE advised frontline staff to wear a flimsy plastic apron with coveralls when gowns ran out, in a move that doctors and nurses fear may lead to more of them contracting the virus and ultimately putting lives at risk.’
Legal perspective
There is legislation and case law covering the employer–employee relationship, which may subsequently be tested in the courts in relation to COVID-19 and PPE when NHS staff and others have time to fully reflect on events. Horsey and Rackley (2019) discuss the nature of the employer's duty to exercise reasonable care for their employees' safety:
‘An employer's non-delegable duty is typically said to have four components (building on Lord Wright's statement in Wilson & Clyde Coal Co Ltd) comprising the provision of: a competent workforce; adequate material and equipment; a safe system of work (including effective supervision); a safe workplace.’
The British Medical Association (BMA) (2020) discuss COVID-19: refusing to treat where PPE is inadequate:
‘You can refuse to treat patients if your PPE is inadequate, you are at high risk of infection and there is no other way of delivering the care. The law also requires you and your employer to protect your safety and the safety of others. Employers must provide a safe system of work, which includes provision of appropriate PPE.’
Difficult and uncertain times
These are difficult and uncertain times and there are no easy answers or solutions in a rapidly developing crisis. However, there is a legal framework, law on the issues of legal duties and responsibilities of employers, employees, PPE and the employment relationship. In the USA, Ricker (2020) quotes a lawyer who received about 40 calls from nurses and doctors across the country asking about legal remedies they may have for exposure to COVID-19 and a lack of PPE.
When the dust eventually settles on the COVID-19 pandemic in the UK, it is not improbable that legal claims for compensation could appear. Ricker (2020) raises some key legal issues that may need to be addressed in the NHS.
The value of the common law and COVID-19 legal disputes
Over the years, nurses and doctors have become increasingly familiar with the legal aspects of their professional practice. A study of law is empowering and can inform decision-making. A particular benefit of studying law is exposure to the richness of the English common law.
The common law, sometimes termed judge-made law, judicial precedent or case law, can contain a rich stream of judicial analysis and a wealth of detail on key issues in health care.
Impact of law
Judges' decisions in cases will have an immense immediate impact on the parties to the case. Cases can also have a wider effect in society through the doctrine of binding judicial precedent. There are often no easy solutions to the problems that the courts are asked to adjudicate on. Judges must often consider a complex matrix of ethical, legal and factual issues. A case that well illustrates the important value of judicial decision-making, analysis and the role of the common law is University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882.
A shortage of hospital beds and COVID-19
Mr Justice Chamberlain recently ruled that a woman (MB) occupying an NHS bed for over a year must vacate it and leave it for care in the community. Her room could be required urgently by COVID-19 patients and there would be an increased risk of MB contracting COVID-19 if she remained in hospital.
MB was first admitted to hospital on 18 February 2019 after collapsing at home and suffered from several medical conditions. She has long-standing, complex psychological conditions, including post-traumatic stress disorder, disrupted attachment, obsessive compulsive disorder, possible borderline personality disorder and Asperger's syndrome. She needs help with personal care, including washing, dressing and toileting.
The claimant
The claimant, University College London Hospitals NHS Foundation Trust, stated that MB could be safely moved to specially adapted accommodation provided by Camden London Borough Council. Camden has worked for more than a year drawing up a community care package that would prove acceptable to MB. The care package has been revised over time but the defendant, MB, continued to make more demands and refused to accept it. The current care package offered included 24-hour care, 7 days a week for an initial period of 3 months.
Mr Justice Chamberlain stated that it was a tragic feature of MB's condition and complex mental health difficulties that she frequently suffers from extreme distress in hospital or outside. The hospital cannot lawfully be precluded from doing actions that could precipitate that distress, otherwise it could not do anything that she disagreed with:
‘In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant. In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even [if] ceasing to provide inpatient care to one of them [requiring them] to leave will certainly cause extreme distress or will give rise to significant risks to that patient's health or even life.’
The hospital in this situation, the judge stated, determines rationally and, in accordance with a lawful policy, that A's clinical need is greater than B's, or that A would derive greater clinical benefit than B. Inpatient care is a scarce and finite resource. There are competing demands, which must be resolved fairly. The judge made an order that MB should be required to leave the ward the next day and that the hospital take all reasonable steps to discharge her to her bed at home.
The judgment
The case covers a number of legal areas including NHS resource allocation and human rights. What is particularly noteworthy is the way that Mr Justice Chamberlain sensitively dealt with the human and health care aspects of the case. The rights of MB were carefully considered and balanced along with the positions of all the other relevant parties: the efforts of Camden London Borough Council, the nurses, doctors, and other health carers, and the effects of MB's challenging behaviour on them. Her behaviour had impacted on the mental health of several staff members.
COVID-19 and medical negligence
Bowcott (2020) reports that the NHS could be faced with billions of pounds of medical negligence claims if it does not grant some form of legal immunity to medics risking their lives during the pandemic. The Medical Defence Union (MDU) is calling for a debate on the issue.
Some US states have already provided immunity laws. In the UK, doctors are being asked to work outside their expertise and retired nurses and doctors have been called back. Within the context of increasing costs of clinical negligence there are acute concerns.
The MDU, Bowcott (2020) states:
‘… accepts that doctors should be accountable for their actions and it is therefore calling for a public debate over legal immunity and whether the NHS should be able to be sued for patient care related to the COVID-19 outbreak. It says any compensation paid out would be a drain on NHS resources and the taxpayer as well as being damaging to staff morale.’
The MDU has not received any claims related to COVID-19, but it is aware of some complaints about treatment of patients.
The common law can cope
I would state that there is no need to debate emergency indemnity legislation. There are English common law tort cases that can be used in any case brought by a patient claimant. The law can be flexible, taking all the circumstances of being in a pandemic into account when, for example, setting the standard of legal care to be expected in a clinical situation. In practice, clinical negligence is a hard matter to establish.
We can see from University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 how carefully judges scrutinise and balance complex issues within the context of COVID-19. There is no need for the government to entertain the idea of legal changes to a patient's right to sue for clinical negligence. Judges should be left to do their job.
Conclusion
The COVID-19 pandemic is raising some challenging legal and ethical issues, which are beginning to be addressed in court. There are concerns that substantial litigation will result when the crisis is over. That may or may not prove to be the case. Given clinical negligence trends over the years, it is possible some claims will be made but I would not expect the courts to be swamped.
The law itself can be seen to be a strong mechanism of health carer accountability and, as well as manifesting a dispute resolution function, it also operates to deter poor clinical practices. The common law can be effectively used to resolve healthcare disputes in the COVID-19 crisis and when it is over.