UK & Europe
Across the NHS healthcare professionals are finding themselves working in roles and on wards outside their usual experience. In these circumstances, what standard of care would the courts expect of them?
Current events have found medical professionals in posts that are not part of their usual day jobs. More extreme examples include the Irish Taoiseach returning to work as a junior doctor. However across the NHS healthcare professionals are finding themselves working in roles and on wards outside their usual experience. Student nurses and recently graduated doctors are a vital resource providing care beyond what would ordinarily be the case. In these circumstances, what standard of care would the courts expect of them?
In Dowson v Lane  EWHC 642 the question arose as to the standard of care expected of a GP registrar. The case is of particular relevance to current events.
A doctor or other medical professional must provide a standard of treatment that a responsible body of medical professionals who work in the same field would deem to be acceptable. The decision of Wilsher v Essex Area Health Authority  QB 730 (CA) confirmed that a junior doctor owes the same standard of care as a qualified doctor. Inexperience is not a defence.
In Dowson the court reiterated the principle outlined in Wilsher. The rationale is that the standard to be expected is the standard appropriate to the task at hand. Being a junior doctor is of no relevance when carrying out a task that senior colleagues also undertake. If the task is beyond the abilities of a junior doctor then they should not be doing it. If they do, they will not be judged to a lower standard due to their inexperience.
In present circumstances the court is likely to take the same approach. No matter what role a medical professional was in prior to the crisis, they will be judged to the same standard as someone for whom this is their ordinary role. It would be unworkable and illogical for a different test to apply.
However this does not mean that the courts will be blind to the unprecedented nature and effects of the pandemic – quite the contrary. The courts do not assess breach of duty in a vacuum but instead consider all the circumstances. The COVID-19 outbreak is a relevant circumstance. The standard of care will be considered for a health professional in the same situation. It is not the experience of the person that is important but rather whether their actions would be supported by a responsible body of medical professionals in the same scenario. Context is crucial.
In a similar vein, the GMC has issued guidance that doctors may have to depart from standard procedures to care for patients. In the current climate that departure may become the new (albeit temporary) standard.
Authors: Graeme Watson & Chris Dunn