Hard-pressed clinicians may well be wondering: what standard of care can be expected of them during a pandemic?  

The modern law of clinical negligence has never been tested at a time of national crisis. Bolam v Friern Hospital Management Committee[1], which is generally regarded as the origin of the key legal principles in this area, was reported in 1957. Although this seems historic to a modern practitioner, it is a post-war judgment. 

The General Medical Council’s recent guidance on coronavirus includes the following statement of principle:  “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.”

Alternative Dispute Resolution has been around for many years. It is enshrined in the Civil Procedure Rules - CPR 1.4(2)(e) requires the Court to actively manage cases by “encouraging the parties to use alternative dispute resolution procedure if the Court considers it appropriate and facilitating the use of such procedure”. The standard directions in clinical negligence claims means that it is routine for the Courts to order the parties to consider ADR as part of the directions given at the start of each case. It is also now well established that parties can face cost penalties for failing to engage in ADR – Halsey v Milton Keynes General NHS Trust 2004 EWCA Civ 576.

However, mediation – a specific form of ADR – is on the increase in clinical negligence claims. NHS Resolution has publicly stated its position that “Mediation and alternative dispute resolution (ADR) are fundamentally aligned with NHS Resolution’s strategy to deliver fair and cost effective resolution, by getting to the right answer quickly, safely, and reducing the number of claims going into formal litigation by keeping patients and healthcare professionals out of court” (Julienne Vernon, Head of Dispute Resolution and Quality, NHSR – February 2020).

The stage at which cases are mediated is changing too. NHS Resolution is not only enthusiastic about mediation but also to engage in mediation early – “Mediation as an intervention can be more effective if carried out at an earlier stage in the lifecycle of the claim” (Mediation in healthcare claims – an evaluation – NHSR February 2020).

At 6.50 am on 10 February 2020 Matt Hancock signed off the Health Protection (Coronavirus) Regulations 2020, SI 2020/129. The press reported that the urgent need for the regulations was that some people subject to quarantine by agreement had said they could see little point in the process and intended to leave. I suggested when I last wrote about quarantine that the lack of an enforcement power made contractual agreement a shaky basis for detaining hundreds of people for 14 days.

The Secretary of State has now put in place a raft of coercive powers, including a power to hold people in isolation and for a constable to take someone back to isolation – using reasonable force – and to enter premises to enforce the regulations.  This note summarises those powers.

The new regulations create additional powers to control people who may have coronavirus where the Secretary of State declares that the transmission of coronavirus is a “serious and imminent threat to public health” by way of a notice on the gov.uk website – gone are the old days of publishing notices in the Official Gazette.  At the same time as making the regulations the Secretary of State declared that such a threat existed, and that, for the purposes of exercising these powers, Wuhan and Hubei province were “infected areas” and that Arowe Park and Kents Hill Park hospitals were “isolation facilities”.

A note on the law and practice of quarantine – of individuals, of groups and of places, of the unwell and of the healthy.

  1. Kaci Hickox is a Johns Hopkins’ qualified nurse who worked as a team leader in an Ebola treatment unit in Sierra Leone in September 2014. When she arrived at Newark Liberty International Airport on 22 October 2014 she was taken into custody for 80 hours.  On the same day the governor of New Jersey had signed an executive order providing that travellers arriving at New Jersey who were asymptomatic but at high risk of exposure to Ebola could, if out of state residents, be transferred to a “temporary housing arrangement”.  In response to her detention Ms Hickox brought a claim against the state of New Jersey, including for violation of her right to be free from deprivation of liberty, denial of due process and false imprisonment.
  1. Time Magazine gave “Ebola fighters” their Person of the Year award in 2014, the article noting of Ms Hickox’s quarantine: “The problem with irrational responses is that they can cloud the need for rational ones”.
  1. In July 2017 Ms Hickox entered into a settlement agreement with the state of New Jersey. The parties agreed to a new Addendum to the “New Jersey Mandatory Quarantine and Screening Protocols” for Ebola Virus disease.  The state agreed only to use quarantine “insofar as a medically and epidemiologically necessary” and only after less restrictive measures had been “explicitly explored”.  An order providing for quarantine would have to give a start date and an end date and state the legal authority and medical basis on which it was issued.  It would need to explain why less restrictive options had been rejected and confirm the right of the person in quarantine to a lawyer and to challenge the order[1].

Judges in the Family Division and the Court of Protection are regularly asked to perform the unenviable task of balancing the pros and cons of continuing life-sustaining treatment. The Judge’s decision determines whether the person at the heart of those proceedings should live or die. As the Supreme Court confirmed in a number of appeals including those launched on behalf of both Charlie Gard and Alfie Evans, the Judge must apply the best interests tests in serious medical treatment cases. Thus, although the individual facts will frequently place a great burden on the Court, the legal test at least, is clear.  

In Manchester University NHSFT v Midrar Namiq (a minor) and others, [2020] EWHC 6 (Fam) Lieven J was asked to consider a different, but equally momentous issue – whether the child was in fact already dead.

The Trust argued that the Court’s function was to assess whether the relevant testing had established “on the balance of probabilities” that the child was brain stem dead. In contrast, the family’s representatives argued that the Court’s role was to apply the best interests test to the question of whether the intensive care support that was still keeping oxygenated blood circulating the body should be removed.

  1. On 2 December 2019 Martin Spencer J approved a settlement of £1.35m in this cerebral palsy case which was compromised without any concession of liability from the Defendant. I represented the Claimant[1]. A review of the facts highlights the continuing uncertainties about how far the decision in Montgomery really goes. At the same time this case should be seen as progress for claimants and no doubt others will follow.

Facts

  1. The claimant was born in 2006 and is now 13. He is profoundly disabled with cerebral palsy. This was the result of a venous sinus thrombosis in the first 24 hours of life.  It was agreed that the venous sinus thrombosis was a non-negligent complication of an instrumental vaginal delivery by forceps.  There was no dispute that had he been delivered by elective Caesarean section he would have avoided brain injury.
  1. This was his mother’s first pregnancy. Her evidence was that she had always wanted to have a Caesarean section but had never been offered one.  She was of short stature, at 4’ 11” and was referred for consultant care under the Trust’s policy. Liability centred on the appointment she had with the Consultant Obstetrician in February 2006 when she was about 20 weeks pregnant. She thought that there would be a discussion about whether she wanted a Caesarean section but she was told by the consultant that there was no reason not to be planning for a vaginal delivery. Perhaps understandably, she did not challenge him.  From this date on, whilst she continued to want a Caesarean section, she was never offered one and did not believe she was allowed to insist.