It was reported over the weekend of 18-19 April 2020 that the Medical Defence Union (“MDU”), which provides legal support to around 200,000 doctors, was calling for a debate on the need for emergency legislation to protect doctors from negligence claims arising from the COVID-19 emergency.
The particular concerns raised by the MDU were that retired doctors have been called back to the wards and medical students sent out before they have finished training. Even though the UK government has promised to cover the cost of any future legal actions by providing indemnities [see ss.11-13 Coronavirus Act 2020 and Darragh Coffey’s article below], this will, as the MDU says, cost the country vast sums and expose those who have volunteered to “extremely distressing” and potentially career damaging hearings.
It is worth for a moment pausing to reflect on this justifiable concern and the extent to which the courts and or the legislature may be required to remedy it.
The default common law position is that there is currently one objective standard of care that looks at the activity being carried out rather than the specific actor – see inter alia, Nettleship v Weston [1971] EWCA Civ 6 where it was held that a learner driver should be judged by the standard of an ordinarily competent driver. This single standard applies – for policy reasons – across the professions to avoid the risk of complicated shifting standards. Thus the standard of a reasonably competent doctor carrying out e.g. “heart surgery” will be judged by the standards of the ordinarily competent heart surgeon, not some special standard altered for the specific circumstances.
One recent case which looked at the possible blurred lines between the roles performed and the persons who perform them was the Supreme Court’s judgment in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50. Darnley was a case involving the negligence of hospital receptionist, where Lord Lloyd-Jones focussed on the role performed by the individual in question:
“The particular role performed by the individual concerned will be likely to have an important bearing on the question of breach of the duty of care. As Mustill LJ explained in Wilsher v Essex Area Health Authority [1987] QB 730 , 750-751, the legitimate expectation of the patient is that he will receive from each person concerned with his care a degree of skill appropriate to the task which he or she undertakes. A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”
That is not to say that the circumstances of an emergency may not affect the standard of care.
In Wilsher v Essex AHA in the Court of Appeal Mustill LJ explained at 749:
“….full allowance must be made for the fact that certain aspects of treatment may have to be carried out in what one witness (dealing with the use of a machine to analyse the sample) called “battle conditions.” An emergency may overburden the available 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. Here again, however, the present case is in a different category, for none of those accused of negligence who were called to give evidence on their own behalf suggested that, if mistakes were made, this happened because their attention was distracted by having to do something else at the same time, or because they had to take a difficult decision on the spur of the moment.”
However, as the authors of Clerk and Lindsell 22nd Edition point out: “some emergencies can be anticipated and planned for, especially in a professional context, and it may be negligent to fail to make appropriate arrangements to deal with an emergency”.
In support of that proposition the authors cite Bull v Devon Area Health Authority [1993] 4 Med LR 117, a case in which there was a prolonged delay in providing medical assistance at the birth of a child. There the court rejected the “resources” argument of the Defendant who said they were trying to do the best job possible with the limited resources available.
Thus while some leeway may be given to health bodies, it is possible that the “full allowance” mentioned by Lord Justice Mustill may in fact be watered down to not very much allowance at all, since it can be argued that the COVID-19 emergency could have been (at least in some key respects PPE, provision of ventilators etc.) planned for and anticipated by healthcare bodies in proper planning.
Volunteers/Rescuers?
Insofar as the MDU raise the question of volunteers and whether a different standard should apply to them, the current state of the law is that the English courts have rejected the arguments that a different standard of care should apply to the volunteer helper. For example, a householder repairing a door has been required to conform to the standards of a reasonable carpenter see Wells v Cooper [1958] 2 QB 265 and the same applies in the medical or first-aider field, thus in Cattley v St John Ambulance Brigade (1999) (unreported) the judge held that:
“[The volunteer rescuer in question] or any other person holding himself out as a first-aider trained in accordance with [the First Aid Manual] would be negligent if he failed to act in accordance with the standards of the ordinary skilled first-aider exercising and professing to have that special skill of first-aider’ and went on to say ‘the true test for establishing negligence in a first-aider is whether he has been proved to be guilty of such failure as no first-aider of ordinary skill would be guilty of, if acting with ordinary care.”
The position in England is in contrast to many other jurisdictions, where the concern that potential good Samaritans might refrain from helping others for fear of liability, has led to the replacement of the standard of reasonable care with a lesser standard i.e. of gross negligence or recklessness. German law, for example, employs a standard of gross negligence (and Australia and US laws have rules to similar effect). Closer to home, the Irish Law Reform Commission proposed (in 2014) that a gross negligence standard for good Samaritans be incorporated into the Irish Civil Liability Act 1961. This document is illuminating because it sketches out what a piece of domestic legislation might look like if the Government were to make amendments to existing legislation to cater specifically for the COVID-19 emergency:-
“Protection of good Samaritans from liability for negligence.
51D.— (1) A good Samaritan shall not be personally liable in negligence for any act done in an emergency when providing—
(a) assistance, advice or care to a person who is—
(i) in serious and imminent danger, or apparently in serious and imminent danger, of being injured or further injured,
(ii) injured or apparently injured, or
(iii) suffering, or apparently suffering, from an illness,
or
(b) advice by telephone or by another means of communication to a person (whether or not the person is a person referred to in paragraph (a)) who is at the scene of the emergency.
(2) The protection from personal liability conferred on a good Samaritan by subsection (1) applies even if the emergency is caused by an act of the good Samaritan.
(3) The protection from personal liability conferred on a good Samaritan by subsection (1) shall not apply to—
(a) any act done by the good Samaritan in bad faith or with gross negligence, or
(b) any act done by the good Samaritan when providing assistance, advice or care in circumstances where the good Samaritan has a duty (whether imposed by or under any enactment or any other rule of law) to provide such assistance, advice or care.”
Overall
The call for legislation creating complete immunity from suit to volunteer healthcare workers is probably a step too far. If amendment to protect volunteering retired healthcare professionals assisting with the COVID-19 emergency is contemplated, then the Irish Law Commission’s draft provides a clear blueprint for setting a gross negligence or recklessness test for the establishment of liability. In the absence of such legislative change, it is likely that, while some allowance will be made by the courts for the emergency situation brought on by COVID-19, the allowance will be tempered by the consideration that the state is responsible (under its target duties under ss.1 and 3 of the NHS Act 2006) to provide a comprehensive system of healthcare and, that if that system fails and results in injury to patients or staff (even in the current emergency situation), then, absent cogent mitigating circumstances explaining the failure, liability is likely to follow.
More generally, the courts and Parliament have historically resisted attempts to move to shifting standards of care in the field of negligence, and the Government’s provision of indemnity (see ss.11-13 Coronavirus Act 2020) would seem to suggest it is not currently part of the Government’s plans to change tack now. For Claimant and Defendant solicitors considering the extent to which “emergency” will provide a defence to claims in negligence the answer for the time being would seem to be that, while “full allowance” may be given to “battle conditions”, that allowance will be tempered by considerations of the degree to which the COVID-19 emergency was in fact relevant to the breach of duty alleged, and the degree to which any lack of resources (e.g. PPE, ventilators etc.) could be anticipated or guarded against in the overall provision of the healthcare system. Absent legislative change, it is unlikely that the fact that the person or “actor” carrying out the impugned task is a volunteer or rescuer, will be of any relevance to the standard of care.
