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).

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.

2. 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”.

3. 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].
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