CHAPTER ONE – BACKGROUND
It is unlikely that anyone will forget the world’s most recent significant infectious health crisis – Covid-19 that reportedly has caused over 7 million worldwide deaths[1] between January 2020 and December 2024, making it the fifth-deadliest pandemic epidemic in history. Another estimate says between 18.2 to 33.5 million excess deaths by April 2023[2]. There is bound to be under reporting. Whatever is the correct figure, by whichever matrix you choose – direct diagnosable deaths caused by Covid, or indirectly attributable to this disease, massive damage has been sustained to individuals, societies, economies and human development.
The top four pandemics preceding Covid-19 were the strain of influenza, known colloquially as ‘Spanish flu’, said to have killed between 17 million to 50 million people between 1919-1920; the first Bubonic plague (‘Plague of Justinian’) pandemic killed an estimated 15-100 million of the population in Europe between the sixth and eighth centuries; the second Bubonic plague (‘the Black Death’) killed 25-50 million Europeans between the fourteenth and early nineteenth centuries; and the HIV/AIDS virus has taken 43 million people over the last 43 years or so.
But the biggest killer over the course of time is likely to be malaria, possibly causing 50-60 billion deaths, or half of the human race. It continues to kill at least half a million people per year, despite the existence of effective life-saving treatment.
These bald statistics could well be under-reported as historical knowledge is sparse. Though figures for Covid-19 clearly will be more reliable but remain imprecise. Cause of death by Covid is difficult to assess, dependant on criteria applied. So official death records may include dying after a positive Covid test; those not tested may be excluded. Then again deaths of people dying from underlying conditions following a positive test may be included. People may survive the infection but suffer lost years of life.
Statistics of course go nowhere in addressing the incomprehensible level of suffering for those afflicted and their families – not to mention the risks borne by medics and frontline staff caring for those infected.
Approximately 227,000 people died in the UK from Covid-19 between March 2020 and May 2023, when the World Health Organization (WHO) said the ‘global health emergency’ was over. Dr Mike Ryan from the WHO’s emergencies programme said that ‘In most cases, pandemics truly end when the next pandemic begins.’
The point of addressing viral epidemics and pandemics is a reminder, if such be necessary, of the fragility of human life. And the need to ensure that wherever necessary we can ensure that health systems are able to respond effectively to crises and when (inevitable) mistakes are made that we all may learn from them –not least the government of the day – and try to ensure improvements are made. Such commentary is glib but many, if not all, will accept that serious errors were made in the handling of state measures in England to protect the public and specifically vulnerable and ill people in care homes.
I refer only to England because with devolved government, the other nations of the United Kingdom were responsible for administering their own public health services. This book will cover claims against care homes within England and Wales – Scotland and Northern Ireland having their own legal systems. That said, a measure of coordination was necessary between governments to mount an effective response to the public health emergency.
So The Coronavirus Act 2020 passed with the consent of the devolved legislatures conferred new powers in health, education and justice to tackle the pandemic. The regulations were similar across the U.K initially, such as restrictions on movement and mandatory closure of premises and businesses. Importantly an indemnity for clinical negligence liabilities for NHS work in dealing with Covid was extended to those already not covered by the Secretary of State for Health and Social Care. However the act did not create new duties relevant to the management of health and safety.
In the interests of balance, because this book has no political remit, many would say there were some notable successes in the U.K, principally the rapid research and development, manufacturing and roll-out of a vaccine[3] that will have saved many, many lives (and continues to do so). But I will touch little on the successes because this book, as it must, will focus on omissions of care. It will therefore I hope be useful for those seeking guidance on bringing claims, rather than defending them.
Tragically, similar to cancer, almost everyone will have been affected to some degree by the ravages borne by Covid-19. Death, or on going disablement to ‘brain fog’, not to mention the impact on patients with other illnesses who may have lost priority to treatment are all consequences of the disease. And the economic damage and political recriminations – before one even turns to the prospect of litigation – add further to the misery. As will be covered later, the so-called anticipated floodgates have not yet opened, let alone been breached.
1.1 COVID-19
In December 2019, there was a reported outbreak of pneumonia of unknown origin in Wuhan, China. It was observed that the Huanan Market in Wuhan was the main epicentre of a new virus related to the sale of wildlife at the market. It was concluded that there had been human-to-human transmission beyond the market. The World Health Organization (WHO) learned of the outbreak of pneumonia cases in early January 2020 and notified all country governments on 5th January 2020.
There is some scientific basis to suggest that this virus, later named as Covid-19 was derived from bats or some similar mammal. There is a majority consensus that this market was the likely origin, although there have been suggestions that the virus arose from a laboratory leak.
Whatever is the actual source, whilst hugely significant, does not feature furthermore in this book as going off topic.
We tend to think of Covid-19 as a known, specific disease, though it was only named as such by the WHO on 11th February 2020. The thinking being that CO represented corona, VI for virus, D for disease and 19 for when the outbreak was first identified (31st December 2019). The new virus was formally named as SARS-CoV-2. SARS being the acronym for severe acute respiratory syndrome. Covid-19 was declared by the WHO as a global pandemic on 11th March 2020 due to the rapid spread and severity of cases around the world.
Covid-19 is the respiratory disease caused by the SARS-CoV-2 virus, although interchangeably people do refer to it as the Covid virus.
A pandemic has traditionally been defined in epidemiological terms as ‘an epidemic occurring over a very wide area, crossing international boundaries, and usually affecting a large number of people’.
An epidemic is the rapid spread of disease to a large number of people in the population within a short period of time.
From December 2019, when cases were first identified in China, to the end of March 2020 when Covid-19 cases were found in nearly every country in the world, the evolving infectious disease became a pandemic.
The first case of Covid-19 documented in the UK was on 31 January 2020. This was a student in York that had travelled from Hubei, China on 6 January 2020. The second case was one of his parents. It is now suspected that other people had developed Covid returning from abroad as early as December 2019.
On 6 February 2020, there was a third confirmed case.
Coronaviruses are so named because of their crown-like shape of bulbous projections representing proteins emanating from the central core that look like a solar corona or halo[4]. Human coronaviruses were discovered in the 1960s, separately in the United Kingdom and the United States. They are part of influenza viruses. In fact they were cultivated using a common cold virus and given to volunteers which caused a cold and was inactivated by ether[5].
Coronaviruses have been known to cause infections in animals since the 1930s. The majority do so via the intestinal tract. All previous human coronaviruses have crossed over from animals.
Covid-19 is primarily transmitted between people by breathing or inhaling infectious particles. So that could arise through breathing, speaking, coughing or sneezing. Transmission risk is highest within 2 metres of an infectious person.[6]
As will be evident, some coronaviruses are more serious than others; they can all cause respiratory problems, whether the common cold, pneumonia, bronchitis and some such as MERS-CoV can kill 30% of those infected.
There are six species of human coronaviruses, one of which is subdivided into two different strains. Four of them produce symptoms that are generally mild, while three produce potentially severe symptoms, namely:
- Severe acute respiratory syndrome coronavirus (SARS-CoV), identified in 2003;
- Middle East respiratory syndrome-related coronavirus (MERS-CoV), identified in 2012;
- Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), identified in 2019.
These coronaviruses cause diseases commonly called SARS, MERS and COVID-19, respectively.
If ever there needs to be a ‘wake-up’ call to the world about the proliferation of deadly biological disease, then it is starkly revealed by the fact that the three most serious coronaviruses known to man in the modern world have developed in just over the last two decades.
Of these three diseases, Covid-19 is exponentially far more serious to human life than SARS or MERS from the perspective that many, many more people have succumbed to the disease. The earlier diseases have reportedly killed low thousands of people compared to the figure of over 7 million directly (or around 20 million indirectly) caused by Covid-19. The fatality rate for contracting MERS is 37%, 9.2% for SARS, yet a more modest 1.02% for Covid-19[7]. At its highest Covid-19 resulted in death of 1.35% of those it infected in the UK based on the infection fatality rate. For those aged over 75 it was reported as 12.8% and up to 19.3% for later variants[8].
That provides no comfort given the hugely disproportionate loss of life with Covid-19. One could surmise that it is much more transmissible between humans and therefore represents a far greater danger. For those first displaying symptoms and succumbing to death would take between 6 to 41 days, and typically 14 days.[9]
It is straightening to appreciate that given the comparisons with flu raised by some commentators and government officials, Covid has had an infection mortality rate 13 times higher than flu (in the United States).[10] However some caution needs to be exercised as firstly that was a US study and was in the early stages of the pandemic preceding any vaccine development. Nevertheless it underscores how deadly Covid was in the early months of this disease.
Health crises are increasing, not decreasing.
Indeed Sir Jeremy Farrar, Director of the Wellcome Trust and currently Chief Scientist at the WHO, told the Public Inquiry into Covid-19 currently proceeding, that we are living in a pandemic age.
SARS-CoV-2 has a 70% genetic similarity to SARS-CoV. The virus has a 96% similarity to a bat coronavirus, so widely believed to originate from bats as well[11].
It must be emphasised that statistics for Covid-19 are gleaned in retrospect
The WHO announced that Covid-19 ceased to be an international public health emergency on 5 May 2023 after more than one year of downward trends in hospitalizations and deaths, accompanied by increasing immunity worldwide.
It is now probably considered an endemic disease rather than pandemic. So rather like seasonal flu where it remains ever present, somewhat predictable and static. Malaria remains endemic. The change of Covid’s status is perhaps some cause for celebration (in that some level of control has been achieved in limiting its transmission through a vaccination programme), but recognising that it is likely to remain and cause death and suffering for a very long time. So yet another respiratory illness for the human race to contend with.
Chronology (England)
8-30 December 2019 Patients in Wuhan, China develop pneumonia symptoms of unknown origin.
31 December 2019 Wuhan Public bulletin issued revealing multiple cases of pneumonia of unknown origin
5 January 2020 WHO notifies all countries and issues Disease Outbreak News notice
10 January 2020 China develops a laboratory PCR test to detect SARS-CoV-2 virus
11 January 2020 China releases genetic sequence of the virus
22 January 2020 Public Health England raised risk level from ‘very low’ to ‘low’ following reported case of Covid infection in US citizen returning home from Wuhan.
23 January 2020 Wuhan placed under lockdown and introduction of public health measures. Some countries instituted border controls to travellers from Wuhan.
23 January 2020 WHO reports evidence of 2019-nCoV (yet to be renamed) spreads from human-to-human
24 January 2020 WHO advises countries to institute exit and entry screening
24 January 2020 UK Government’s 1st Cobra emergency committee meeting. Health Secretary advised risk to UK public was ‘low’
30 January 2020 WHO declares virus a Public Health Emergency of International Concern. Risk level in UK raised from ‘low’ to ‘moderate’.
5 March 2020 First death from Covid-19 in the UK
11 March 2020 WHO informs Covid-19 now a global pandemic – 118,000 cases in 114 countries
16 March 2020 UK Govt. guidance on social distancing and for vulnerable people
21 March 2020 WHO publishes guidance on Infection Prevention and Control for long-term care facilities
23 March 2020 National lockdown announced
26 March 2020 Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 enacted
10 May 2020 Lockdown lifted, though restrictions in place
28 May 2020 ‘Test and Trace’ introduced
4 July 2020 First local lockdown in Leicestershire. Most hospitality businesses were permitted to reopen
3 August 2020 ‘Eat out to Help Out’ scheme announced by Chancellor of the Exchequer
5 November 2020 Second national lockdown in England
2 December 2020 Lockdown ends after 4 weeks
8 December 2020 First vaccination (Pfizer) given to public
6 January 2021 Third national lockdown in England
15 February 2021 Hotel quarantine for travellers arriving in England from 33 high-risk countries
8 March 2021 Phased exit from lockdown
29 March 2021 ‘Stay at home’ rule ended
17 May 2021 Most businesses (save highest risk) able to reopen
19 July 2021 Most legal limits on social contact removed
1.2 SPECIAL POSITION OF CARE HOMES
People staying in care homes typically will be elderly, perhaps frail and be clinically vulnerable and susceptible to infectious disease. According to the British Geriatrics Society (BGS)[12] the majority of residents are over the age of 80, most with multiple long-term health conditions with physical disability and cognitive impairments.
There were over 15,000 care homes in England regulated by the Care Quality Commission (CQC) at the start of the pandemic. Although they may not be described as ‘care homes’, there is also residential accommodation for younger people who are ‘protected persons’ who may not have capacity but are clearly vulnerable or those who have physical or learning disabilities who are in community care.
Residents of Care homes as defined by the CQC fall within four categories. Alongside each category is the approximate percentage of those users[13] residing in a Care home:
- Dementia (all ages) 9%
- Older person (aged 65 years and over) 3%
- Younger adults (aged 18 to 64 years) 1%
- Other 8%
It will be noted that almost half of residents suffered from dementia. This has implications about their capacity to give and follow instructions.
What was the scientific evidence base that was available to the government that may have informed its decisions aside from statistical modelling?
One was the Vivaldi project commissioned by the Department of Health and Social Care (DHSC) whereby a network of over 300 Care homes were studied early in the pandemic. They collected data on staff and residents of some 9,081 Care homes to understand the impact of Covid. It was estimated that there were some 293,301 residents with 441,498 staff. 56% of care home managers responded to the survey from which statisticians determined that there was at least one case of coronavirus in each care home that reported with an estimated 20% of residents testing positive and 7% of staff.
What they learnt revealed an increased risk of resident infection associated with the use of non-permanent staff, not paying sick pay for staff, new admissions to the care home, and difficulty in isolating residents.
Other research in observing Care homes involved the ‘Easter 6’ (later named the ‘London Care Homes Network’). This involved genomic testing and contact tracing analysis to understand transmission networks in care homes.
Other than these studies, the government believes that remaining evidence on the impacts on care home residents has been indirect
According to the Department of Health & Social Care, initial priorities concentrated on trying to prevent ingress and minimise transmission. This resulted in trade-offs between maintaining staffing yet reducing transmission from staff moving between care homes. Stopping visits by family members reduced infection risks but also reduced the quality of life to residents.
Necessarily information learned as the pandemic evolved is retrospective with the benefit of hindsight. All will appreciate however that care home providers must institute all reasonably practicable measures to protect residents and staff. This book will explore to what extent that was done with the conflicting messages emanating from the then government in times of great upheaval and change.
There were especial challenges that the care home sector faced. Some of which included shortage of staff, lack of Covid testing and insufficient or inadequate PPE. Furthermore the design and layout of some care homes were such that segregation was difficult. Once an outbreak developed Covid could spread quickly.
On 3 March 2020, the government released its coronavirus action plan. This revealed its 4-stage strategy:
- Contain
- Delay
- Research
- Mitigate
SAGE (Scientific Advisory Group for Emergencies) had already advised on 10 February 2020 that it was likely that there was sustained transmission in the UK. Early on it was recognised that there were three main epidemics occurring – in the community; hospitals; and in care homes where transmission lagged around 2 weeks after high community transmission. An independent report published into the epidemiology of the pandemic in Care homes[14] commissioned by the government found that the majority of outbreaks of Covid were introduced unintentionally by staff living in the community. At this stage, Care homes were largely closed to visitors. Now this report is after the event and will not necessarily assist in formulating a claim unless such risk was foreseeable. It is stated that by the end of waves 1 and 2 at least a quarter of staff and a third of surviving residents had already been infected.
Deaths in Care homes peaked during the first wave in late March 2020. Registered deaths for the week ending 27 March 2020 were some 7750 with some 2500 having Covid-19 on the death certificate.[15]
According to the Office for National Statistics the first wave had the highest proportion of deaths involving Covid with a total of 19,783 representing 23.2% of deaths in Care homes. In the second wave 20.9% involved Covid amounting to 20,766 deaths.
Within short order, some Care Homes decided to close their doors to visitors, with Barchester and HC-One stopping non-essential visits on 10 March and 12 March respectively. This was followed up by BUPA and Four Seasons care homes doing the same on 13 March.
The BGS first issued guidance on Covid in care homes in March 2020. Taken together with publications by the DHSC in conjunction with the CQC and the UK Health Security Agency on infection prevention and control, and on admission and care requirements (during Covid) will assist in determining duty of care measures and possible breaches.
The WHO issued its interim guidance on 21 March 2020 for infection prevention and control that covered care and nursing homes[16]. However it did not mention social care institutions that could house younger vulnerable individuals. The WHO recognised that people living in long-term care facilities were at a higher risk for an adverse outcome because of their age and physical and mental vulnerabilities due to living in close proximity to others. The aim of that document was to provide guidance to prevent Covid from entering the facility; to prevent the virus from spreading within the facility; and to prevent it spreading outside. This is a helpful document in reviewing allegations that may be put in formulating breach of duty or in support of a possible Article 2 breach. They advised as a minimum:
- Provide Covid-19 training to all employees, including hand hygiene and respiratory etiquette; standard and Covid transmission-based precautions.
- Provide information sessions for residents on Covid-19 to inform them about the virus, respiratory disease and how to protect themselves from infection.
- Regularly audit infection, prevention and control practices (e.g. hand hygiene compliance).
- Increase emphasis on hand hygiene and respiratory etiquette.
- Maintain high standards of hygiene and sanitation practice.
- Ensure physical distancing, achievable by restricting numbers of visitors, staggering meal times, minimum 1m distance between residents/staff.
- Restrict access to visitors with screening for signs and symptoms of acute respiratory infection. Those who are admitted should be on compassionate grounds only.
- Surveillance of residents for Covid-19. Assess health status of any new residents at admission to determine signs of fever, cough or shortness of breath. Assess each resident twice daily for the development of a fever (from 38C).
- Surveillance of employees for Covid-19. Employees to remain at home with any fever or respiratory illness. Undertake temperature check of all employees at facility entrance. Monitor employees and their contact with residents.
- Surveillance for visitors should be established, namely screening before admission to see residents, including for fever, respiratory illness and whether come into contact with someone infected with Covid-19. Visitors with fever or respiratory illness should be denied access. And those visitors with significant risk factors for Covid, such as recent travel to an area with community transmission should be denied access.
The guidance sets out measures to be taken if a resident is suspected to have, or is diagnosed with Covid. That includes wearing of medical masks for both the resident and others in the room. The resident should be isolated and really should be cared for in a health facility – that really would mean transfer to hospital or to a nursing home with specialist facilities.
Contact precautions apply to those caring for a resident with Covid or suspected Covid so this requires the use of PPE – medical mask, gloves, gown and eye protection. There should be twice daily cleaning with hospital-grade disinfecting agents for all frequently touched areas.
Those with Covid or are suspected to have it should be confined to their rooms while ill. Isolation is advised until there are two negative laboratory tests for Covid taken at least 24 hours apart after resolution of symptoms. If testing is not possible, the WHO recommends residents remain isolated for an additional two weeks after symptoms resolve.
This could represent a fertile area for pre-action disclosure to ascertain the risk assessments and procedures that care homes should have had in place in the early stages of the first pandemic wave.
But the big question is whether the Government interposed the WHO guidance into its own recommendations. And if not, does that make them potentially liable. The starting point, it is suggested, is review of the government’s initial guidance documents:
‘Coronavirus (COVID-19): admission and care of people in care homes’ first published on 2 April 2020[17]
‘Covid-19 Hospital Discharge Service Requirements’ published 19 March 2020[18]
‘Covid-19: Our Action Plan for Adult Social Care’ published 15 April 2020[19]
‘Covid-19: infection prevention and control (IPC) guidance published 24 April 2020[20]
The first document on admission to care homes expected that people discharged from hospital would be admitted, although the hospital discharge document had the proviso that they must be clinically safe to discharge. However that did not require hospitals to do testing. This policy was operational from 19 March 2020. The UK guidance does not recommend that a resident should be isolated until they have had two negative laboratory tests for Covid-19 at least 24 hours apart.
The WHO guidance is more rigorous than the UK guidelines. For example on PPE, residents should wear a medical mask in suspected or confirmed cases but the government stipulated that this was only required when residents were transferred between rooms. Eye protection was not necessary for cleaners or care staff, yet the WHO stated it was to be worn by staff within 2 metres of residents. There were no distancing requirements other than reference by the government to follow ‘social distancing measures’; but the WHO required 1 metre between residents. The WHO recommended that meals should have been staggered to ensure that physical distance was maintained.
The BGS issued a good practice guide on 30 March 2020. This also differed from that issued by the government. PPE naturally featured; staff must wear recommended PPE for contact with all care home residents. This applied also to visitors, including family members. In relation to infection control, national guidance should be followed or if not available then the ‘Bushproof guidance’ provides a summary of (then current) expert advice. The BGS recognised that Covid-19 is often symptomatic such that regular testing of care home staff was essential. Staff who declined testing should not have been involved in direct care of residents. They advised that care homes should not have accepted admissions from hospital until informed of a resident’s Covid status. Where a patient had tested positive (under England’s policy), a care home might have been asked to accept a Covid positive patient but only, according to the BGC where that home was approved by the CQC as a ‘designated setting’. Even then, this will be subject to risk assessments based on resident care needs and organisational capacity. Significantly they suggested that all admissions to care homes should be quarantined for 14 days after admission.
Not all new entrants into care homes were tested in April 2020 despite advice from Sir Chris Whitty that this should happen. On 15 April 2020, the social care action plan was launched in the face of 400 care home deaths per day. Testing of staff and new entrants was to be commenced. This was revised on 28 April 2020 to all care staff and residents, regardless of whether they had symptoms.
According to the International Long-term care policy network (LTC)[21], they were critical of guidance issued particularly by Public Health England. They considered that asymptomatic/pre-symptomatic transmission was a major contributor to the spread of Covid-19, introduced from outside either from staff or patients from hospitals. There needed to be a clear demarcation within a care home of zones of risk, i.e. contaminated areas, possible contamination and clean (green) zones. Hand disinfection was necessary for all points between risk zones.
Government guidance to care homes was not always clear, lacked overall coherence and failed to communicate sufficiently about the routes for transmission and how to block them. The document by Public Health England,’Covid-19 How to work safely in care homes’, dated 17 April 2020 gave helpful and simple advice on PPE, but was poor on other aspects of Infection prevention and control. It made factually incorrect statements on routes of transmission, likening transmission characteristics of Covid-19 to the 2003 SARS-CoV outbreak. It also stated that the incubation period was 1 to 14 days with a median of 5 days and similar to SARS, most patients will not be infectious until the onset of symptoms. By this stage, the international experience had identified asymptomatic transmission.
According to LTC, the biggest gaps within the UK government/PHE and the NHS were:
- Failing to recognise the critical role that asymptomatic and pre-symptomatic transmission had in the spread of Covid-19 in care homes;
- Lack of a coherent zoning approach to infection, prevention and control;
- Insufficient understanding of transmission routes and not emphasising gloves on hand hygiene and also when gloves are off;
- Focussing on symptoms of new cough and high temperature (which are not the most common for older people) in suspecting Covid; and
- No one-stop document with clear, practical guidance for care homes to implement.
It has been thought that during the first wave, when the government encouraged discharge of patients into Care homes, that this was one of the principal causes of a spike in Covid transmissions. However some statistical modelling research[22] has indicated that a discharge from hospital into a care home was not associated with a significant increase in risk of a Covid outbreak. This was a study in Wales so is not necessarily applicable to the English experience. They found that the number of cases associated with care homes stopped rising following the requirement to test on discharge. They concluded that this suggested that alternative sources for seeding residential care outbreaks should be investigated. Some studies in England indicate that PPE and number of staff employed have an impact on the number of Covid-19 infections.[23]
1.3 STATUS OF LITIGATION
It had been thought that with unprecedented numbers of people dying or seriously affected by contraction of the Covid-19 coronavirus that litigation would be rife against the NHS and care homes, especially following the decision in Gardner.[24]
Claimants would be expected to be from those who had suffered infection and illness from Covid-19 and from relatives acting on behalf of the estate of a loved family member. Or it could be from those whose medical condition has not been diagnosed on a timely basis and a delay in treatment as those suffering from Covid were prioritised. Many would say that the NHS has been under-resourced for many years by governments of different political persuasions, and that would include recruitment and retention of sufficient clinicians. So a bad situation becomes acute when dealing with Covid.
Data for claims against care homes are hard to come by partly because on going litigation is not published and settled claims are not always revealed. NHS Resolution[25] publishes an annual report and accounts revealing the trends in claims, awards of damages by speciality and costs. This would not provide specific information about claims against care homes but makes interesting reading in the light of Covid. The annual report for the year ending 2021 reflects the first year of living with Covid to 31 March 2021; and it revealed that the liabilities decreased by £1.3 billion from the previous year, down from £84.1 billion to £82.8 billion with costs down by £120 million, to £2.26 billion. This was accompanied by an increase in claims of 951 to 12,629. They did state that they expected any claims arising from the pandemic to be made in future years. Even so they had set aside £500 million for Covid related claims. There were very few incident reports related to Covid in that year, which is not surprising. As NHSR comments, the average lag time between incident and notification (non-maternity) is 3.6 years so that year may not be representative of future litigation.
The net impact of Covid-19 cost £0.5 billion with a forecast to £1 billion for the next year. This reflected indirect impacts of Covid from delays, cancellations and misdiagnosis as a result of longer waiting lists.
In 2022/23 £2.64 billion was paid out which increased to £2.8 billion in 2023/24. Contrast this with 13,552 cases in the former year and 13,382 in the latter. This last year also represented the year with the highest number of cases resolved pre-issue of proceedings at 81%.
The number of claims relating to Covid-19 was 22 in 2021/22 with only 7 in 2020/21. Clearly a very low number but one must appreciate that this records claims against the NHS and not against Care homes. Across the Clinical Negligence Scheme for Trusts, there was an increase in reported claims of 3.3% compared with 2021/22. This was a relatively modest increase and was still 1.7% lower than the average of the five years to 2019/20 preceding the pandemic. But numbers rose substantially by 8.6% in 2022/23, compared to the previous year. It could be surmised that as in clinical matters, law also experiences a backlog (in bringing claims) following Covid because of the inevitable operational challenges.
The majority of the financial provision set aside relates to maternity claims. In the annual report and accounts for 2023/24, obstetric claims accounted for the highest percentage at 13% of clinical claim numbers by volume but accounted for 57% of all clinical claims by value received. Another interesting statistic is the percentage of claims that are resolved by NHSR by the payment of damages– or as Claimants would describe it – the success rate which stood at 52%. This has been on a slightly increasing tide as 51% of cases prevailed in 2022/23 with 51.8% in 2021/22.
There has also been a rising tide of claims settled pre-issue of proceedings. 81% of claims settled pre-issue in 2023/24 against 80% in 2022/23.
So what does this mean for Claimants bringing or anticipating the commencement of a claim? Well, if a claim should be brought against an NHS Trust, NHS Resolution has set aside provision to settle meritorious cases. For those claims relating directly due to the treatment of Covid, £470 million has been allocated for damages and costs. For indirectly related claims such as delayed and misdiagnosis cases, especially cancer claims, £610 million has been set aside.
NHS Resolution launched the Clinical Negligence Scheme for Coronavirus that provided cover for Covid-19 claims not already covered by existing indemnity arrangements. It was established in accordance with the powers enabled by the Coronavirus Act 2020. The intention was to provide financial peace of mind and confidence to those clinicians undertaking NHS work to backfill others. For example where NHS Trusts were hosting special healthcare arrangements such as Nightingale hospitals then this indemnity arrangement applied. It also covered Local Authorities taking part in the Community Testing Programme.
There was a rare system of accord shown by lawyers practising clinical negligence during the pandemic. On 14 August 2020 a new protocol was finalised between NHS Resolution, the Society of Clinical Injury Lawyers (SCIL) and the charity, Action against Medical Accidents (AvMA). Known as the Covid-19 Clinical Negligence Protocol 2020. They agreed to suspend the usual limitation period of 3 years to bring a claim until three months after the protocol ended. It only applied to law firms that were members of AvMA or SCIL or any other organisation that was a signatory to the protocol. Therefore firms who were not party to the agreement or individual Claimants were bound by the usual limitation period and would be responsible for negotiating with the Defendant any extension of time to the limitation period. It remained in place until one of the parties gave notice to end it. Costs savings accompanied by a reduction in litigated claims of 6% in the financial years 2021 to 2023 were attributable (at least in part) to the protocol and this new détente in relations.
Such was its reported success that a revised Clinical Negligence Claims Agreement 2024 was developed and continued on from its predecessor. This is covered in Chapter 6 as it could almost be considered an adjunct to the Personal Injury and Clinical Disputes Protocol.
The deluge of cases that was anticipated does not appear to have transpired. The Gardner case had limited success for the Claimants and perhaps has led to a reality check for some law firms representing Claimants. The judges concluded that the Department of Health March Discharge Policy and the April Admissions Guidance failed to recognise the risk to elderly and vulnerable residents from asymptomatic transmission. As such, those Government policies were irrational in that an asymptomatic patient discharged from hospital to a care home should be segregated from other residents for 14 days.
There have been reports in the media of cases brought under the ECHR following the loss of family members in care homes or hospital. 27 families reportedly had brought claims against the Secretary of State for health and social care alleging a breach of Articles 2,8 and 14 of the ECHR. The deaths occurred early in the pandemic from Covid-19. The Personal Representatives seek on behalf of the estates damages for loss of life, personal injuries, pain and suffering, anxiety, distress and feelings of injustice. Although detailed arguments are not known, it is expected that the claims will focus on failures to publish procedures, lack of appropriate guidance, policies and rules to be applied by residential care homes or nursing homes.
The current status of the litigation is unknown other than proceedings have been issued; that could be because there is a current stay to explore settlement or cases may have been disposed of on a without prejudice, confidential basis either by payment of damages and/or costs or they may have been discontinued. Given the publicity surrounding the cases, it is improbable that Claimants’ families will go quietly and so litigation may be proceeding.
MORE INFORMATION / PURCHASE THE BOOK ONLINE
[1] data.who.int
[2] The Economist, www.economist.com/graphic-detail/coronavirus-excess-deaths-estimates
[3] Oxford AstraZeneca vaccine research started January 2020; pre-clinical trials by Summer 2020 with roll-out to population in November 2020, following approval for use on 2.12.2020. Source: UK Research and Innovation.
[4] See Tyrrell, Fielder (2002). Cold Wars: The Fight Against the Common Cold, OUP, p.96
[5] Kendall, Bynoe, Tyrrell (July 1962), BMJ. 2 (5297)
[6] See UK Health Security Agency on Covid-19:background information
[7] Covid-19 Dashboard by the Center for Systems Science and Engineering at John Hopkins University
[8] Office for National Statistics, www.ons.gov.uk, Coronavirus (Covid-19) Infection Survey pilot:England, 14 May 2020; Birrell et al, www.mrc-bsu.cam.ac.uk/ 9.12.2021
[9] Rothan, ‘The Epidemiology and pathogenesis of coronavirus disease (Covid-19) outbreak’, Journal of Autoimmunity
[10] Pitlik (31 July 2020), Covid-19 compared to other Pandemic Diseases, Rambam Maimonides Medical Journal
[11] Cohen (26.1.2020), ScienceMag, American Association for the Advancement of Science
[12] Prof. A. Gordon (and others), ‘Covid-19: Managing the Covid-19 pandemic in care homes for older people’, 18.11.2020
[13] CQC, Office for National Statistics
[14] www.gov.uk/government/publications/technical-report-on-the-covid-pandemic-in-the-uk/chapter-82-care-homes
[15] Office for Health Improvement and Disparities: Excess Deaths In England
[16] iris.who.int
[17] www.gov.uk/government/publications/coronavirus-covid19-admission-and-care-of-people-in-care-homes
[18] www.gov.uk (withdrawn document but still accessible though publications)
[19] ibid
[20] ibid
[21] ‘Mapping of UK Government Guidance for Infection Prevention and Control (IPC) for Covid-19 in Care Homes, 15 May 2020, itccovid.org
[22] ‘Risk factors for outbreaks of COVID-19 in care homes following hospital discharge: A national cohort analysis’, 6 Feb 2021, Emmerson at al, pmc.ncbi.nih.gov/articles/PMC8013658/
[23] ‘Introduction to and spread of Covid-19 in care homes in Norfolk, UK’, Medrvx, 2020, Brainard et al
‘Evolution and effects of COVID-19 outbreaks in care homes: a population analysis in 189 care homes in one geographical region of the UK’, Lancet Healthy Longev, 2020, Burton et al.
[24] (1) Gardner (2) Harris v (1) Secretary of State for Health and Social Care (2) NHS Commissioning Board (3) Public Health England [2022] EWHC 967 (Admin)