April 7, 2020

COVID-19 UK: Medical law and legal indemnity for healthcare workers

During this COVID-19 pandemic, more healthcare workers are needed in specific areas of medicine e.g. respiratory care and intensive care. As a result, the government is attempting to gather every possible 'safe pair of hands' that can be found.

One strategy contained in the Coronavirus Bill is to re-register doctors and nurses who have previously left their relevant professional Register for example having retired in the last three years. In addition, the Bill proposes to make possible the re-distribution of staff (including from cancelled elective treatment lists) to the area of specialty where they are needed, envisaging dentists providing hospital treatment.

This will mean nurses, healthcare assistants, doctors and other healthcare professionals undertaking work in areas and specialties which they are not familiar with. Whilst some training is already taking place, the emotional burden this places on our brave healthcare staff cannot be under estimated. Although it may well save lives by increasing access to intensive care, it is also likely to increase the risks to other patients for example in A&E non-COVID-19 related assessments, or caring for patients with complex diabetes or cardiac needs. Eventually, claims for clinical negligence and compensation will follow, which may be a worry to staff and organisations alike.

Although some hoped that claims related to COVID-19 would be prohibited, the current legal system is able to deal with the anticipated claims, with a little tweaking. The Bill provides protection by extending indemnity to those healthcare workers who undertake clinical work outside of their expertise in this limited period, if their clinical treatment is later found to be sub-standard.  It is arguable that such indemnity already exists under the relevant statutory schemes e.g. the Clinical Negligence Scheme for Trusts (CNST) or GPs, but the Bill makes the aim clear, providing indemnity for any treatment that may otherwise have fallen through a gap.

The Coronavirus Bill states that it relates to work undertaken within the NHS, and specifically points out that cover that falls to be considered by medical defence organisations or insurers is unaffected. Therefore, unless otherwise stated by the MDO or insurer, they do not automatically provide wider indemnity for work performed outside of a practitioner's specialty or usual practice.

Difficult decisions are being made every day by healthcare providers and, sadly, not every decision will be right or produce a good outcome.  For healthcare staff who are providing necessary, brave assistance, outside of their comfort zone (and likely outside what would be indemnified by anyone other than the NHS), it is essential that they are reassured that they are indemnified against claims which may come later. 

We recommend healthcare staff to:

  1. Be clear which tasks are 'reasonable' for them to undertake, and which are so far from their personal knowledge that it would be cavalier for them to perform them without additional training, or direct supervision.
  2. Be prepared to explain their actions to their professional regulator later, as the indemnity in relation to compensation for negligence, cannot prevent complaints being made to the GMC, NMC or HCPC etc. Whilst we anticipate that time for making medical records will be even shorter than usual, if staff are working in an overwhelmed ward or department, or have asked for direct supervision for a task, they should include this context in their record of the care.
  3. Seek confirmation that work they are being asked to do is being done for the NHS, and that it will be indemnified by one of the relevant schemes, or as proposed in the Bill.

Please get in touch with us if you would like further advice.  

Authors: Judith Duffin, Richard Manstoff, and Padideh Dolatshahi

Disclaimer

This briefing is for guidance purposes only. Clyde & Co accepts no responsibility or liability for any action taken or not taken in relation to this note and recommends that legal advice is taken having regard to an individual’s particular circumstances.