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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.”

A (pre-coronavirus) first-instance judgment, Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB), may shed some light upon the approach which a Court could take in the event of a clinical negligence claim.  Green J considered the case of a delay in diagnosis in an Accident and Emergency department, finding as follows (emphasis added):

In relation to a triage nurse: The assessment of breach of duty is not an abstract exercise but one formed within a context – which here is that of a busy A&E where the task of the triaging nurse is to make a quick judgment call as to where next to send the patient.”

In relation to a doctor: “If Dr Chong had been given the week off in order to research Mr Mulholland’s case she might, just possibly, have listed a Jacksonian seizure on her list of possible causes. But in my judgment the standard of care owed by an A&E doctor must be calibrated in a manner reflecting reality. It was not, in the circumstances confronting her, negligent of Dr Chong to omit this sort of specialised neurological condition from her assessment.”

It remains to be seen what approach the courts will take in relation to the coronavirus crisis. In addition to the pressures on individual clinicians around issues such as diagnosis and treatment planning, there are likely to be numerous systemic problems. These are likely to include delays in diagnosis and failure to treat progressive conditions due to unavailability of equipment and unavailability of staff. The challenge for the courts will be balancing the rights of injured people with the pressures at play on the system as a whole.

From the point of view of individual clinicians, the approach taken at first instance in Mulholland may offer some reassurance: at the very least, one High Court judge has showed willingness to take context into account when considering the standard of care in an emergency setting.  Looking at the GMC’s guidance, it would be sensible for clinicians to keep a record of situations where they have no alternative but to depart from established procedures, in order to ensure that they can “explain their decisions and actions if they’re called on to do so.”

At a broader level, we are likely to have to consider the systemic issues in much more detail when more is known over the coming months and years. 

 

[1] [1957] 1 WLR 582