Last week hundreds of thousands of NHS patients in England discovered they were potentially at risk due to missed invitations to breast screenings. As more reliance is placed on technology, databases and AI, healthcare providers must ensure they implement robust systems. If they don't, and harm flows, damages may be payable.
On 2 May 2018, Jeremy Hunt MP informed the House of Commons of a serious failure in England's breast screening programme. A mistake in a computer algorithm led to 450,000 women not being invited to their final breast screening between 2009 and 2018. Mr Hunt told the House that there "may be between 135 and 270 women who have had their lives shortened as a result".
This came to light during an IT update earlier this year. Mr Hunt has ordered an inquiry into the processes and IT systems managing the screening programme. He stated that "if, because of a failing by the NHS, harm has happened, then people will be eligible for compensation". The extent of that compensation is not yet clear.
There has been a clear system breakdown here and it is understandable that the story generated so many headlines. But what of other cases which don't attract such attention?
In a standard medical negligence case, the NHS Trust will be vicariously liable for the acts of its employees if they are negligent.
A healthcare provider can also be liable for loss caused by systems failures. There is no need to demonstrate the negligence of individual doctors or nurses.
The health authority has a duty to provide a suitable system of care. What constitutes a suitable system will be determined by the usual standard in negligence claims.
While courts will have regard to the financial constraints of a hospital or trust, this will not always provide an escape route from liability.
In the breast screening scenario, the arguments will revolve not around availability of staff or equipment, but the negligent implementation of the computer system. The health authorities had control of the system and patients placed themselves, and put their trust, in their care. If these systems failed – as it appears that they did – and that failure was not reasonable, the courts are likely to find primary liability established.
In his statement to the Commons, Mr Hunt was careful to say that the process would involve establishing whether the missed scan was likely to have caused the death.
The same is true in other systems failure cases. Establishing primary liability does not negate the need to demonstrate causation. Had the system failure not occurred, would there have been a different outcome? This may be further complicated by the additional risks associated with breast screening of older patients.
The number of reported cases involving systems failures is limited. However, with increasing reliance on automation, computer systems and AI, it is likely that we'll see more. Health authorities and other care providers must ensure that the systems they implement, as well as the staff who work within them, are suitable, and are operated with reasonable care.