Summary

Empirical data suggest that people from Black, Asian and Minority Ethnic (“BAME”) backgrounds are being disproportionately affected by Covid-19 and, on Wednesday 29^th April 2020, NHS England gave sensible and important interim guidance to Hospital Trusts, pending an investigation by Public Health England.

Some Trusts are seeking to protect BAME staff with measures including removal from the front line. This blog examines whether these well-intentioned measures are lawful.

Background

While about 14% of the UK population in the 2011 Census were from a BAME background, they make up about 34% of critically ill Coronavirus patients, according to an April 2020 NHS Confederation briefing Between 2017 and 2019, only 11.6% of critically ill viral pneumonia patients were from a BAME background. The same pattern is seen in the US. There is something about Covid-19 that disproportionately affects BAME people.

We are all under attack – but this time, our foe is not a country, a terrorist group or a person. Nor is it a predator. Chillingly, it is not even alive. It is a brand new tiny packet of genetic material which has only a transient existence and cannot reproduce itself – fooling human cells into making copies of it. The soldiers in this war are disproportionately made up of the very people who appear ethnically most vulnerable to it: 44% of UK doctors, and almost 22% of all NHS staff, are from BAME backgrounds. In London, BAME staff make up almost 45% of all NHS Trusts’ staff.

Summary

The Supreme Court in Whittington Hospital NHS Trust v XX [2020] UKSC 14 has upheld the Court of Appeal’s decision to award damages for Californian commercial surrogacy to an infertile British claimant. Such an award of damages is the first of its kind in the fields of personal injury and clinical negligence.

Lessons from the recent cases of:

• Saunders v Central Manchester NHS Trust [2018] EWHC 343 QB
• Collyer v Mid Essex NHS Trust [2019] EWHC 3577 QB
• Schembri v Marshall [2020] EWCA Civ 358.

Surgical cases often provide difficulties for Claimants because it is not always clear how the alleged negligent injury occurred – nothing being noted at the time and the injury only becoming apparent post operatively. In the first two of these recent cases Claimants failed on breach because they could not prove the probable mechanism of injury, let alone that it was negligent. This is quite common in surgical cases because of the limited evidence as to the surgery itself – usually just a short operation note.

Claimants also often have difficulty in proving whether and how a breach has been causative of an injury. In Schembri v Marshall the Court of Appeal gives us a useful reminder of some important principles.

I set out in this article a summary of these cases, the principles they illustrate and some practical lessons to be learnt from them and my own experience in such cases over the last 25 years.

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).