The outbreak of COVID-19 has changed the scope of our National Health Service during the Government’s efforts to combat coronavirus. Hospital staff are under immense pressure, risking their lives and many are working in unfamiliar roles during these abnormal circumstances. The Government has guaranteed an indemnity for healthcare professionals as part of their response to coronavirus, although this does not omit liability for any claims brought against them. The Medical Defence Union has proposed instead that emergency legislation should be implemented which would grant the NHS immunity against any clinical negligence claims. One of the main challenges for the courts in relation to the standard of care in clinical negligence claims will be finding the right balance between the interests of society and the copious pressures that continue to burden the NHS.
All patients are owed a duty of care in law. In order to succeed in a claim for negligence, the claimant must prove that there was a breach of that duty, that the breach caused harm to the claimant and that damage or other losses resulted from that harm. The ‘standard of care’ in medicine is well established in the decision of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, otherwise known as the ‘Bolam’ test. The Bolam test sets out the the standard of care for professionals in medicine as a comparative exercise, by judging clinicians in accordance with the standards of a responsible body of healthcare professionals in that field at the time. The Bolam test has since been modified through developments in case law. However, the test for breach of duty still remains and continues to require expert evidence to identify a breach and ultimately determine best practice. The question stands as to whether the Bolam test can still be applied in unprecedented circumstances, such as COVID-19.
We are currently in a unique situation which no clinician would have ever experienced, making it difficult to identify ‘best practice’. It seems problematic to hold healthcare workers to the same standard when COVID-19 wards are completely novel and made up of staff from a variety of specialisms. Additionally, the impact of COVID-19 has had consequential affects on the NHS, making the circumstances that staff are working far from normal. The time pressures staff are facing, as well as the increase in workload could easily create room for the ‘standard of care’ to slip. Further, patients with progressive conditions that are non-coronavirus related could also experience delays in diagnosis and have limited availability to staff and medical resources due to the current circumstances.
The General Medical Council recently published guidance for clinicians on practice during the pandemic:
“Doctors should continue to follow our guidance as far as is practical in the circumstances. It is likely that as the situation develops, some doctors will need to depart from established procedures to care for patients. We expect doctors will behave responsibly, reasonably and will be able to explain their decisions and actions if they’re called on to do so. But we understand that this is a challenging time.”
Whilst this guidance is reassuring for clinicians, it is still unclear what approach the courts will take. Previous case law suggests it is likely that the present context will significantly contribute to the court’s findings during this period.
Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB) offers a contextual approach to clinical negligence claims in relation to a misdiagnosis in A&E. It was emphasised in this case that the standard of care was “formed within context” and “in a manner reflecting reality”.
More recently in Morrison v Liverpool Women’s NHS Foundation Trust [2020] EWHC 91 (QB), it was stated: “Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved.”
It will be important for the courts to consider the particular circumstances and pressures that hospital staff are facing when imposing a standard of care on healthcare workers. However, it remains important for clinicians now more than ever to take accurate records of situations in which they may have to depart from traditional practices. Whilst Bolam has been the basis of the courts’ approach to clinical negligence claims for the past 60 years, it will prove difficult for the court to determine breaches of duty as it is more likely that instead the the pandemic will allow a bigger scope for error of judgement. It therefore seems reasonable to depart from the Bolam test during these difficult and unprecedented times.
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