In a sense, we are all “victims” of the 2020-1 Coronavirus pandemic. Our lives have been changed dramatically by its effects at the domestic, community, regional, national and international levels. None of us born since WWII have experienced the restrictions of movement/activity we are experiencing as “lockdown”. There are serious wellbeing issues associated with being confined to the home for the majority of time, and no doubt those suffering domestic strain, let alone abuse, are truly “suffering”. One thinks also of those self-denying or being denied access to treatment for other health conditions because of the necessary concentration of health resources upon Covid-19 patients. All of this without considering the serious economic effects of deprivation of income for many people who really cannot afford any reduction in their already stretched incomes.
However, some are more equal than others[1].
For all of these reasons, and one's heartfelt desire to be nothing but supportive to the work of our caring services, and other “front line workers” with whom we must of course “pull together” to combat and defeat this threat, we feel a natural reticence about discussing legal remedies for those worst affected or at least those whose legal rights have been undermined or infringed during this crisis. There will be many “victims” of the disease for whom there is no remedy at all. However, in the end there will inevitably by many people who will be killed, or who will suffer long term health effects, because of the work they were required to do during these difficult times, and as lawyers we must think about and be ready to help them where appropriate to obtain compensation which they and their families will desperately need over coming years.
In recent days there has been growing criticism in the UK media of the efforts made to plan for and provide protective equipment to those at the “front line”. The obvious examples of such staff are those working in clinical settings, and those working in those places where people have been permitted, indeed at least in part encouraged, to continue to congregate in numbers, such as on public transport and in food shops. Grouping these types of employees together illustrates an important aspect, namely that whilst the most obvious examples concern the clinical/care settings, these are not issues of clinical negligence, but rather primarily of employer's liability[2].
What is the legal framework governing the provision of PPE equipment?
There are complicated and overlapping issues. On the one hand, the obligation of employer fully to assess[3] the risks presented in the workplace, and to provide personal protective equipment (PPE) that is suitable to counter the health and safety risks to be faced in work is long established and since 1993 heavily formalised by the Personal Protective Equipment Regulations 1992, as amended. Reg. 4 is straightforward:
4.-(1) Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.
There is no qualification of this as to what is “reasonably practicable”[4] and the regulatory obligation appears absolute, as a matter of criminal law at least. There are supportive provisions, for example as to specific prior assessment of the suitability of PPE (Reg.6) and ensuring maintenance and replacement of PPE (Reg.7), both highly relevant here.
In the absence of suitable PPE, the essential alternative is not to employ the worker upon tasks which present the relevant risk, and it is noticeable that in recent days the trade union representatives of nursing staff have gone on record to say they will “support” decisions of their members to decline to work without suitable PPE. Advice online[5], however, seems to put enormous pressure on nurses considering declining to work in obviously dangerous and unprotected conditions, the so-called “last resort”. It is worth quoting in some detail:
6. Ultimately, if you have exhausted all other measures to reduce the risk and you have not been given appropriate PPE in line with the UK Infection Prevention and Control guidance, you are entitled to refuse to work. This will be a last resort and the RCN recognises what a difficult step this would be for nursing staff. RCN advisers or your local rep can talk to you through these difficult judgement calls. Please visit www.rcn.org.uk/advice or telephone 0345 772 6100.
7. As ever, you must be able to justify your decision as reasonable, so keep a written record of the safety concerns that led you to withdraw treatment using local incident reporting procedures (for example DATIX) where possible.
If you decide not to treat due to a lack of adequate PPE, and your action is subsequently criticised, there are potential legal consequences, as follows:
- Dismissal: Under employment law, if there were ‘circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert’ then your employer cannot fairly dismiss you.
- NMC and social care regulators in Scotland, NI and Wales: The NMC Code requires registered nurses and nursing associates to take account of their own safety, the safety of people in their care and the safety of others. The NMC expects registered nurses to evaluate the situation and balance the needs of these potentially competing groups. Social care regulators in Scotland, NI and Wales which register care assistants and nurses also impose standards. If the NMC or another regulator investigates you, then you must be able to justify your decision.
- Clinical negligence: You could be sued for negligence by a patient. Your indemnity provider would pay the damages and other costs if negligence was proven.
- Inquests: You could face criticism in the course of an inquest.
- Criminal and DBS: There is the potential for neglect or even gross negligence manslaughter charges to be brought, although these are very rare. Criminal cases and investigations can also lead to entries on your DBS certificate.
- Rest assured that if you refuse to treat for lack of PPE, and are criticised subsequently, the RCN will provide you with legal representation and other support in any proceedings that ensue, without judgement.
There are, of course, linked and in some ways more immediate issues of employment law and discrimination law concerning the position of “whistleblower” staff, and our employment team colleagues in Doughty Street have already been dealing with that type of case and providing a helpline service to solicitors and members of the public. There is an important evidential link between the record of events in those cases, and the ability of the victims we are considering here ultimately to have a remedy which compensates them or their families for the longer term.
How might the courts approach a claim of this type?
A judge asked to rule on a claim for PPE breach will have to consider it against a legally complex background.
First, there is the recent change in our law brought about by s69 of the Enterprise and Regulatory Reform Act 2013. There are interesting interpretative issues around this, concerning the application of Pepper v Hart [1992] UKHL 3 to the representations made to Parliament when the Act was passed as to its precise effect, but it is generally thought that s69 amended s47 of the Health & Safety at Work Act 1974 to remove the direct right of action for breach of statutory duty in the health & safety environment, subjecting all assessment of employer failings to the test of negligence, so the ultimate composite test will usually be what steps were reasonable for the employer to take in light of reasonably foreseeable risks.
Second, though the latter would not appear to be a difficulty, “reasonable steps” will have to be considered in the context of resource issues. The employer health trust/supermarket owner may, for example, seek to contend that it would have wished to provide PPE but it was “simply not available”, or at least not available in acceptable form, bearing in mind the quality and conformity requirements prescribed by the Personal Protective Equipment (Enforcement) Regulations 2018[6].
Third, there are interesting common law causation issues in the area of infection control. It can always be said that a Claimant cannot prove s/he would not have contracted the disease anyway[7], although the lines of authority we argued in Goldscheider v Royal Opera House[8] last year provide some of the answers to this contention. Care is needed, however.
Insofar as individual employers may argue that “it was not their fault” and they did all they reasonably could in the circumstances, the focus may move to Her Majesty's Government as Defendant, for failure properly to plan and act to ensure that there were sufficient stocks and lines of supply of PPE to cope with the “wave” of infections which was, after all, reasonably easy to predict from the global data emerging in the early part of 2020. A UK public enquiry will likely follow the pandemic, and it may be critical of government or individual departments within it. That, of course, will not in itself provide individual remedy for the unprotected health worker with permanent respiratory illness, or for the family of the deceased London bus driver. Private action may well be possible, but it will require to deal with “policy arguments” in areas into which, it may be argued, the court should not stray. Depending on context, the standards to which employers are usually held may not be applied to government operating at the “macro” level, and this may particularly be the case in a situation of “global threat”. The operation of policy issues in a way adverse to a Claimant must be kept will in mind and is well illustrated by our recent Q Fever litigation: Bass v MOD [2020] EWHC 36 (QB).
What is the role of the Human Rights Act?
Another aspect it will be necessary to consider fully in relation to the actions of the UK state and of those employers being or acting as public authorities[9], is that of Human Rights Act remedies. The obvious right engaged here is Article 2 of the ECHR, the positive obligation upon the state and its agencies to act to protect life. The availability of claims put in this way is a very important aspect, and it needs to be considered and analysed carefully in the facts of the individual, or particular types of, case. In the Snatch Land Rover case[10], three servicemen were killed by a roadside bomb. The bereaved families successfully sued the MOD for a breach of Article 2 in failing to procure and deploy appropriately armoured vehicles to soldiers in the front line in Iraq. We consider that herethere is an arguable case that the Department of Health is in breach of Article 2 for failing to take reasonable steps to protect the doctors, nurses and other healthcare staff in the front line in the battle against Covid-19 in failing to procure and deploy appropriate PPE to protect them. Insofar as an individual employer health trust seeks to point the finger of blame towards Her Majesty's Government, claims must be considered against both the trust and the Secretary of State for breach of Article 2 . Particular litigation issues in which different considerations apply from the more usual EL form of claim are as to proof of causation, assessment of quantum for “just satisfaction”, and limitation, and a greater degree of urgency is required in advising on and commencing appropriate claims. [11]
A separate but linked aspect of the human rights context is that coronial inquest may and should be used as a highly efficient method of investigation of death in these circumstances, without the victims incurring substantial costs. It must, however, be appreciated that this is not automatic. Death from a disease abroad in the community will as a starting point be considered “natural death”, not requiring an inquest. Once the issue is properly raised as to whether that death was wholly or partly caused by deliberate, reckless or even negligent human failing, the death becomes one appropriate to be investigated by the coroner, and where the possibility of a breach by the state or its organs/agencies of its Article responsibilities is raised, a detailed Article 2 investigation is called for. Again, the Doughty Street Human Rights and Inquest teams are already engaged on considering these issues in detail.
Concluding remarks
No-one said obtaining justice and redress was going to be easy, but difficulties notwithstanding, we believe that at least in the case of people who have bravely continued working to enable us to get through this terrible time, there will and should be significant public pressure to ensure that appropriate compensation is afforded to those who have suffered illness or to the dependants of those lost, and that if the court were on supposed policy grounds not to permit claims to succeed in appropriate cases, this would ultimately be seen as a form of betrayal of those workers, and a serious failure of our legal and justice system. “Taking back control” was supposed to be about enabling our institutions better to serve and protect our citizens, so let it be so. As long ago as 2003, giving judgment in the asbestos case of Transco v Griggs[12], Hale LJ said in response to technical causation arguments:
Once the degree of exposure, the breaches of duty and the medical causation had been established, it would be an unjust legal system which did not hold the employer responsible for what had happened.
Indeed.
Theo Huckle QC, Nick Brown, Frederick Powell
Doughty Street Chambers Clinical Negligence, Personal Injury and Product Liability Team
21 April 2020
[1] George Orwell, Animal Farm.
[2] There could be separate clinical negligence issues: https://bit.ly/GuardianMDUClinNeg
[4] Cf. Baker v Quantum [2011] UKSC 17 and the authorities discussed there.
[5] https://bit.ly/RCNOnlineRefusalToTreat
[6] Replacing the similar Personal Protective Equipment Regulations 2002.
[7] An interesting invitation to prove a negative.
[9] This is unlikely to apply to a private employer, even where it is a large corporation.
[10] Smith v Ministry of Defence [2014] AC 52
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