We examine the approach to indemnifying healthcare professionals in respect of clinical negligence claims arising out of COVID-19 globally and consider what options are available in the UK.
In the UK, sections 11 to 13 of the Coronavirus Act 2020 were enacted to provide indemnity cover for healthcare professionals in respect of claims in tort relating to caring for those with COVID-19 or other NHS care affected as a consequence of the pandemic. This primary legislation provides cover over and above the existing Clinical Negligence Scheme for Trusts (CNST). However, a debate has arisen as to whether further government action is needed to protect healthcare professionals providing NHS care during the pandemic from civil claims, by providing additional protections.
The debate around immunity has been most pronounced in those countries with highly developed liability markets and high mortality rates linked to COVID-19. As such, the most active discussions are in the US and UK.
At least 23 US states including New York, New Jersey, Illinois, Massachusetts, Connecticut and Michigan have already adopted laws that provide healthcare professionals and hospitals with immunity. There have been differing approaches between states. For example, New York have provided an immunity to healthcare professionals, provided the act or omission was in “good faith”. New Jersey have also provided an immunity but broadened the exception to stipulate the act or omission must not constitute a crime, gross negligence or wilful misconduct. Kentucky has provided a defence to healthcare providers to civil claims, provided they acted as the “prudent and reasonable” healthcare provider would in the circumstances, which is more akin to our existing Bolam test.
In the UK, the Medical Defence Union has called on the government to introduce emergency laws to provide indemnity to healthcare professionals, akin to New York, and considers there should be a public debate on the issue.
There has been little, if any, specific debate in other European countries. There is, however, some debate around future medical claims. There is no debate on immunity in Australia or Singapore, though the prospect of litigation has arisen in Australia.
Options available to UK legislators
The broad options available to the UK government are to enact further legislation to provide an additional layer of protection, either by way of primary or secondary legislation. Alternatively, a second option is to wait until the first COVID-19 related clinical negligence claim is brought before the courts and allow them to make a decision based on the existing law. We anticipate the case of Wilsher v Essex Area Health Authority  will provide assistance. Mustill LJ held:
Legislative options available include a complete indemnity similar to New York, a defence similar to Kentucky or a higher standard of care, akin to “gross negligence”. The latter two options would provide protection to healthcare professionals whilst still allowing patients to pursue claims. Another alternative is to enact a compensation scheme for NHS and social care families, similar to the Diffuse Mesothelioma Payment Scheme (DMPS) established to provide compensation to those who were negligently exposed to asbestos by their employers and have developed Diffuse Mesothelioma as a result.
A compensation scheme for the bereaved families of NHS and social care staff seeking damages under the Fatal Accidents Act 1986 is an alternative option. A scheme could be operated on a strict liability basis and assess damages to families in accordance with the normal rules applicable to clinical negligence claims. Such a scheme would be best brought into effect by primary legislation or alternatively, secondary legislation using section 71 of the National Health Service Act 2006 and operate similarly to the DMPS.
In relation to claims from patients during the pandemic, either from those treated for COVID-19 or for other conditions, a defence for healthcare professionals or higher standard of care could be alternatives.
The option of pursuing a claim is kept available for patients (or their families), with a higher burden of proof appropriate in the context of healthcare professionals working under the very challenging conditions the pandemic has presented.