What standard of care should hospitals be held to in the COVID-19 outbreak? James Todd QC and Emma Corkill look at the key considerations.
It is no secret that COVID-19 is placing huge strain on the NHS, with ramifications across all parts of an already stretched organisation. Hospitals nationwide have been told to prepare for a tsunami of patients demanding very high levels of care. They are having to do so while facing staff shortages and worries over the supply of essential equipment. In an effort to cope, retired doctors and not-yet-fully qualified doctors have been drafted in. In such circumstances, it is inevitable that accidents will happen and errors will be made. Once all of this is over, it is a regrettable fact that litigation will ensue. Will the law step up to protect the professionals who have done so much to save lives and ready the nation for the post-corona world? This short article argues that it can and should, most obviously by recognising that desperate circumstances should be reflected in the standard of care applied to hospitals and medical professionals working in response to COVID-19.
Going back to first principles, a defendant will be in breach of her duty of care if she takes less care than a reasonable person would have taken. The concept of the reasonable person is an impersonal, objective one. Normally, no account is taken of the fact that the defendant is a beginner or inexperienced. All lawyers remember from their student days the case of Nettleship v Weston  where the Court of Appeal held that a learner driver is to be held to the same standard of driving as a reasonably skilled and experienced driver. The presence of compulsory insurance was a significant factor in that decision, but imagine the chaos on the roads if they had held otherwise.
For a clinical negligence claim to be established, the healthcare professional must fail to meet the standard of a reasonable practitioner in that discipline or specialism. Per Bolam, a medical professional is not guilty of negligence if s/he has “acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art" .
Inexperience is not relevant when considering the standard of care owed: the clinician must be competent for the post they hold. The fact that the clinician has only been in practice for a few weeks makes no difference: they either are or are not competent to perform the role. If a doctor finds they do not have sufficient experience or knowledge to deal with an issue, then their duty requires them to refer the case to someone who does. It is no defence to say that they were still learning how to do the job. So said the Court of Appeal in Wilsher v. Essex AHA . Mustill LJ (as he then was) found that a patient should be given certainty that their treatment by a type of doctor will be performed to a certain standard, regardless of which particular doctor performs it.
There is a caveat to this: the standard expected relates to the post which is being occupied. This allows for some consideration to be given to different skill levels (if one accepts the premise that lower ranks will normally be occupied by those with lower skill levels) but maintains one standard across all who occupy that post, without regard to their personal experience and qualifications.
The applicability of the principle in the modern NHS was considered and reaffirmed by the higher Courts in two recent cases. In 2017, Jackson LJ noted in FB v Rana  that the standard owed by doctors “is not tailored to their individual strengths and weaknesses”: there, the standard of care applicable to the “relatively inexperienced” senior house officer, who had been acting in the A&E department, was that of a reasonably competent SHO working in that department. And in the 2018 case of Darnley v Croydon Health Services NHS Trust , the Supreme Court again held that the standard of care should be based on the role being performed. There, a receptionist was tasked with providing information about waiting times to those who presented in A&E. Drawing on Wilsher, the Supreme Court explained that “the standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care" .
We believe that it is unlikely, even in these times of extreme pressure, that the Courts will relax these long established and rigid principles. Any trust deploying fresh-faced beginner doctors, or indeed returning veteran clinicians, would be ill-advised to deploy them to duties for which they are not sufficiently skilled. Patient safety is too important. On the other hand, provided they are deployed to the roles to which their skills are suited, it would be grossly unfair to demand that they perform those roles to the standard of a clinician with greater qualifications and (recent) experience.
Where the scope for flexibility lies, we believe, is in recognising the type of conditions – emergency or even ‘battle’ conditions – in which clinicians are likely to be working for at least some of the time in the current crisis.
The law has long recognised that an emergency situation may import different considerations to the assessment of standard of care. In essence, the question the Court has to consider is what was reasonable in the circumstances. There are many first instance decisions illustrating this. In Cattley v St John Ambulance Brigade , the High Court considered the standard of care to be expected from a volunteer first aider, holding that the Bolam test’s inherent flexibility allowed its application to the issue of volunteers acting in emergency situations. Translating this principle to the A&E context, it was observed in Mulholland v Medway  that those acting in emergency departments “do not have the luxury of long and mature consideration”.
COVID-19 will take the pressures on a hospital and its staff to a level far above those of an ordinary busy emergency department, however. Generally, unavailability of resources is not a relevant factor when assessing whether a defendant has exercised reasonable care: if a defendant does not have sufficient resources, it should opt not to provide the service. However, that argument should have a shorter life in the context of a hospital dealing with the full force of the COVID-19 pandemic.
In Wilsher, Mustill LJ allowed that the standard owed by medical professionals might be affected by “battle conditions”, commenting that where an emergency overburdens a hospital’s resources and leads to a doctor having to do too many things at once, if they get something wrong in those circumstances their actions should not lightly be held to be negligent. This was a prescient statement indeed and, while it is obiter, it is likely to be tested in the years following this crisis.
In the pre-coronavirus world, an NHS patient was entitled to expect that doctors and clinical staff were fully trained and sufficiently resourced to provide proper treatment. For now, we live in a different world: everyone is aware of the strains on the NHS caused by the COVID-19 outbreak; it has been drummed into the population daily that one of the purposes of the lockdown is to allow the NHS to avoid hitting breaking point. There are stories of problems with the supply of PPE and of other resources being diverted to deal with the crisis. These are truly battle conditions and no reasonable person could expect the normal level of service to be provided at all times in this unprecedented situation. When something goes wrong, and the court is called upon to set the standard of care in a tortious claim, we believe that the inherent flexibility in the concept of standard of care should and will come to the aid of those accused of negligent treatment.
 Nettleship v Weston  2 Q.B. 691
 Bolam v Friern Hospital Management Committee  1 W.L.R. 582 *587
  2. W.L.R. 435 (note that Wilsher did not go to House of Lords on this point); and see Djemal v Bexley HA  Med. L.R. 269
  EWCA Civ 334
 Darnley v Croydon Health Services NHS Trust  UKSC 50, 2018 WL 04899444
 Darnley para.25
 Queen’s Bench Division, 25 November 1988. The case remains unreported by the major series. A transcript is available on Lexis
  EWHC 268 (QB)