Some of the crucial medical and scientific questions facing the world surround immunity from coronavirus. Do patients gain any lasting immunity after recovering from Covid-19? How effective will the hoped-for coronavirus vaccinations be? Is ‘herd immunity’ a realistic way out of lockdown? We all hope to have answers soon.
But surgeons, doctors and other healthcare professionals are increasingly concerned about a different type of immunity – immunity from being sued or prosecuted in respect of their crucial work in these extremely difficult circumstances. It has been reported that some bodies (including the MDU) are calling for emergency legislation to provide some form of legal immunity, particularly for the NHS and NHS staff. Some US states such as New York, New Jersey and Michigan have already introduced some immunity from civil liability.
But what does this mean for healthcare professionals right now? And is this relevant to private practice?
Unfortunately, it is too early to predict whether the UK government will make any such law, when, or how any new protection would work. Nobody knows whether it would only apply to NHS work, or provide some protection to those in private practice too. As the coronavirus pandemic goes on, there could be lots of speculation and lobbying for new laws. But, until a new UK statue is actually passed, there is no immunity for healthcare professionals from claims, even those arising out of care and treatment provided at the height of this crisis.
At the moment, we have to assume that the normal legal tests for clinical negligence apply. Fortunately the legal test already builds in some flexibility to account for the circumstances in which the healthcare professional is working. As long as a reasonable group of healthcare professionals in the same circumstances would have done the same thing, then it is unlikely that the actions were negligent.
However, this may not be much reassurance to those healthcare professionals and commentators who fear that large numbers of claims and allegations will be made, despite the Herculean efforts being made across the country. We all hope that this fear is not justified, but cost of medical negligence in the NHS has climbed steeply in recent years, so it must remain a realistic possibility.
In these difficult and uncertain times, our advice would be:
- Don’t be misled by opinion, speculation and lobbying – there is no guarantee that any new legal ‘protection’ will arrive, nor how it will work.
- As disheartening as it may be to be thinking about dealing with claims or allegations after all the sacrifices that are being made, it remains as important as ever to deal with complaints, claims and other investigations as you usually would. Those working in the NHS should follow the usual guidance from their Trust’s legal and complaints teams. For those with their own personal Medical Indemnity insurance, it is more important as ever to comply with the requirements of that policy.
- For example, Incision members have cover for the cost of legal representation in GMC regulatory, criminal or certain inquest proceedings, regardless of whether the incident happened in the NHS or in private practice. Therefore, as long as they inform their insurers straight away about anything that could lead to GMC, criminal or certain inquest proceedings, then they have peace of mind and expert assistance at hand. Incision members have access to its dedicated 24-hour medico-legal helpline service, to make that process as quick and convenient as possible. Examples of situations the medico-legal helpline has assisted with include a threat to report a doctor to the GMC from a distraught family member. It initially appeared that the threat was in the ‘heat of the moment’, but the family of the patient who sadly died did then go ahead with a complaint to the GMC. Other examples in the current crisis could include allegations (even those based on an honest misunderstanding) over misuse of limited PPE supplies, or bullying allegations as tired and distressed colleagues misinterpret innocent interactions.
- Incision members also have cover in respect of complaints and claims arising from their private practice. To gain peace of mind, the key thing is to inform insurers straight away of anything that could lead to a claim. Even if a patient is making apparently absurd complaints such as not being able to see you in person during lockdown, the relatively small time needed to get the incident recorded with the insurers could save you from facing considerably bigger problems down the line.
- The other key thing will be to keep continuity of cover. Claims can be made for at least three years after the treatment in question (and very often longer), so healthcare professionals will need the best possible cover available to them in the years following this coronavirus pandemic. Many healthcare professionals’ private income will have been reduced because of the lockdown, so there will no doubt be a temptation to economise on cover at next renewal. But we would recommend that it would be better to budget and plan ahead to get or maintain the best possible cover. It doesn’t make sense to economise on your Medical Indemnity cover when some commentators predict a new wave of claims and allegations arising out of these unprecedented times. For the same reason, if you happen to retire in the next few years, make sure you purchase excellent run-off cover to protect yourself against claims that may only arrive years after you stopped practising.