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Medical Malpractice – The Post Lockdown Landscape

Following the delays caused by the COVID-19 pandemic, NHS patients now face unprecedented waiting times caused by cancelled surgery and treatment lists. It is inevitable that the private healthcare sector will be called upon to assist in treating patients, both within the NHS indemnity scheme and independently. This article seeks to highlight areas clinicians may wish to consider when managing patients within the context of the most significant delays since the NHS was established.

Backlog

On 9 September 2021, NHS England reported that 5.6 million patients in the UK were waiting for surgery – this represents the highest number since modern records began. Of those, 293,102 patients in England had waited more than a year, compared with just 1,600 prior to the COVID-19 pandemic. In May 2021, The Royal College of Surgeons requested an extra £1bn of funding per year and the establishment of specialist centres across hospital sites to focus exclusively on routine surgery, such as hip and knee replacements. In early September 2021, the government announced an additional £5.4 billion of funding to support the NHS response to COVID-19. Of the £5.4 billion, a billion has been allocated to tackle the COVID-19 backlogs and deliver routine surgery and treatments.

Notwithstanding this recent cash injection, long term additional funding for the NHS following the COVID-19 pandemic seems set to remain a contentious issue. The financial constraints, married with a lack of available theatre time across the NHS, will undoubtedly present significant challenges when tackling record waiting lists. Add to these financial and capacity issues the palpable anger within the healthcare workforce surrounding this year’s 3% NHS staff pay award, which comes on the back of a long battle by NHS consultants surrounding a real terms fall in their income, and we may begin to understand the difficulties facing consultants and other healthcare workers. Whilst it appears the risk of industrial action within the NHS has subsided for the moment following the increase from 1% to 3% in terms of pay, if it were to be reignited in the coming months, the NHS’ ability to respond to the escalating waiting lists for routine surgery and other treatments would be further reduced.

Private sector role in reducing waiting lists

NHS England has confirmed that they will look to the private sector to assist with reducing waiting lists for routine surgery and other treatments. Private providers have been asked to apply to a new procurement framework worth up to £10bn, from which NHS organisations will purchase additional capacity for up to four years. The services being contracted will include not just surgery, eg, hip and knee replacements, but also diagnostic pathology, imaging services and cancer treatment. NHS Trusts will be able to contract work out to the private sector to assist in reducing waiting times for NHS patients.

When the private sector treats NHS patients under the above frameworks, indemnity is afforded under the NHS Clinical Negligence Scheme for Trusts (CNST), managed by NHS Resolution, or potentially will fall under an extended/altered Clinical Negligence Scheme for Coronavirus (CNSC) – there are similar, but alternative schemes in Wales, Scotland and Northern Ireland where healthcare is a devolved power. Either way, the private sector is afforded the benefit of full clinical negligence indemnity when treating such patients. It is important, however, to remember that CNST or CNSC does not cover GMC or criminal litigation but will usually respond to inquests if the Trust is involved. We discuss this further below.

It seems inevitable that the private sector will also see an increase in patients paying for treatment who have grown tired and frustrated with long waiting times following the COVID-19 pandemic. Indeed, the recent release of half-yearly results by the Spire Healthcare Group PLC clearly indicates an increasing demand amongst UK patients for private care. In light of this, there are a number of areas we consider our insureds’ should be mindful of.

Increase in private patients

Delay in obtaining treatment may result in the deterioration of a patient’s condition. If providing imaging or pathology services, timely and accurate reporting will be key to avoiding further delay. Cancer treatment may be less effective, or you may be dealing with a patient who is now facing a terminal diagnosis due to delays during the pandemic. Routine knee and hip replacements may no longer be “routine”, with increased erosion, decreased general health and fitness caused by lockdowns and extended delays, making patients higher risk for complications such as infection, bleeding or failed prosthesis. All of these issues may, in turn, lead to an increase in complaints and litigation if patients are not counselled properly prior to treatment being commenced.

Regardless of whether the patient remains within the NHS or becomes a private patient, the consent process, including discussions and documentation, together with openness and transparency as to likely outcomes, will be crucial in avoiding patient dissatisfaction, complaints and increased litigation. Many patients will already be anxious given the delays and the impact this has had on their day-to-day life. They are therefore more likely to respond negatively to unexpected outcomes. Dedicate time to obtaining informed consent from patients. Ensure that you document in detail any increased risks caused by delays in treatment. Please refer to GMC’s guidance, Decision making and consent, 2020.

In respect of NHS patients, indemnity will be provided by NHS Resolution, as noted above. However, please be aware that cover does not extend to GMC complaints/investigations, criminal action or to some inquests if the Trust itself is not called to give evidence. Your PMP policy will respond to issues arising outside of the litigation process where needed*.

With regard to private patients, bear in mind that you have the right to refuse to treat if you consider that the procedure is too complex to be managed in a private hospital, or that the patient does not appreciate the complexities created by the delay. It is entirely your choice if you wish to offer surgical treatment to a patient, but care should be taken when declining, as patients can claim discrimination if the matter is handled poorly.

Take care not to be pressured into taking on a surgical intervention for a patient. Ensure you use your professional judgement and are not swayed by pleas from the patient or demands from the private hospital where you have admitting rights. Always work within the limits of your competence; this will help ensure you protect your clinical reputation. In addition, ensure that the hospital has the necessary equipment, staff and services available to meet the needs of your patient, preoperatively, postoperatively and during surgery.

Checklist

Given the number of patients who have suffered as a result of delayed treatment during the pandemic, please be mindful of the following:

  1. Delays can make routine surgery and other treatment options more complex and ultimately less effective – it is crucial that you document and counsel patients properly in respect of consent and maintain detailed contemporaneous notes of your discussions.
  2. If the patient remains on the NHS pathway, indemnity will be provided by NHS Resolution for clinical negligence claims. However, your PMP policy will respond to regulatory or criminal matters*.
  3. It is reasonable to decline treatment within the private sector if you consider the case is too complex or that the patient is unrealistic in terms of the risks and potential achievable outcomes as a result of any delays in treatment.
  4. Ensure that you use your professional judgement when agreeing to a patient’s treatment and always work within the limits of your competence.
  5. Prior to the intervention, ensure that the hospital has the necessary equipment, staff and resources available to meet the needs of your patient, preoperatively, postoperatively and during surgery. If you have any concerns or need advice, please contact the PMP medicolegal helpline in accordance with the terms of your policy.

Litigation as a result of the delays caused by COVID

As we are still in the early stages following the easing of lockdown restrictions, it will be some time before litigation for issues arising from care, or lack thereof, filters through the system. The preliminary views of those involved in healthcare law are that given a government mandated lockdown stopped all but essential healthcare services, it will be difficult for patients to sue hospitals/clinicians for any delays directly caused by these lockdowns. Early indications are that Claimant law firms are seeking to sue Trusts/employers for a lack of PPE and safe systems whilst working through the pandemic, ie, employer’s liability claims. In addition, they are investigating claims in respect of patient care for hospital acquired infection (COVID-19 specific) and the inability of families to visit dying relatives. Therefore, a flood of claims for failure to treat during the pandemic is not anticipated.

The threat of increased litigation lies in how patients are prioritised following the easing of lockdown measures. Whilst it is clear that the delays in treatment will present an opportunity for the private sector to assist in reducing waiting lists, clinicians should exercise caution, given the dangers the impact of delays may have on successful patient outcomes. As outlined earlier in this article, the complexity of what may initially have been “routine” surgery will increase, so it is important for clinicians to be sure of the limits of the environments within which they work. For example, if the surgery turns out to be more complex and the patient deteriorates on the operating table, or shortly thereafter, does the hospital where treatment is to be undertaken have the necessary resources to deal with this? Are there sufficient stocks of blood, trained staff, imaging and ICU facilities if needed? Remember, if you are the lead consultant, responsibility for the patient will remain with you. Therefore, be sure you are confident that you can respond to any potential issues or complications that may arise.

If you are responsible for pathology or imaging, consider who is responsible for prioritising the backlog in addition to dealing with new cases. Litigation for delays will most likely arise from perceived failures to prioritise once restrictions are lifted. Of course, there is a balance to be struck between those already waiting in excess of normal wait times, against those new into the system.

It is currently too early to say where litigation will arise in respect of patient care following the removal of pandemic restrictions. However, being candid with patients about how delays have impacted likely outcomes and consenting them accordingly will be crucial should a dispute arise in respect of treatment provided. In addition, documenting a logical and clear system for prioritising patients for treatment will also assist should any dispute arise at a future date regarding delays.

If you have any doubts about the systems in place to manage the backlog; or concerns regarding the environment in which you are being asked to undertake more complex procedures, please do not hesitate to contact the PMP medicolegal helpline for support. Contact details can be found on your customer card or policy documents.

*Subject to policy terms and conditions

Information correct at time of publication September 2021
This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, please contact your solicitor, legal advisor or other professional advisors if you have any questions related to your legal or medical obligations or rights, applicable law, contract interpretation, or other legal questions. © 2021 Premium Medical Protection Ltd. All rights reserved.
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