NHS told to expect ‘huge number’ of legal challenges after pandemic

The specialists said legal challenges against clinical commissioning groups and NHS providers would be inevitable, around issues such as breaches of human rights and clinical negligence claims.

Francesca Burfield, a barrister specialising in children’s health and social care, told HSJ’s Healthcheck podcast: “I think there is going to be huge number of challenges. If and when we move through this there will not only be a public enquiry, [but] I anticipate judicial reviews, civil actions in relation to negligence claims and breach[es] of human rights….”

She said criminal proceedings by the Care Quality Commission or Crown Prosecution Service would also be a possibility, around issues such as deprivation of liberty, neglect, safeguarding, and potential gross negligence manslaughter.

Max Duddles, a solicitor who specialises in mental health at Mander Cruickshank, said: “There will be legal challenges… there inevitably will be. We are living in incredibly unusual times and people are under a great deal of pressure to make some very important decisions, very quickly and that’s not fair on anybody.”

The lawyers both work with Bond Solon, HSJ’s sister company which specialises in legal training.

Both lawyers urged CCGs, social care workers and NHS providers to ensure they are maintaining accurate records and to keep a clear audit trail that shows why and how decisions are being made.

Mr Duddles added: “If you act in accordance of what the law is now, you are able to defend your decision. You can chuck something at your lawyer and they have something to get their teeth into and put a defence together, but you have to keep those records and consult with the people you must consult with.”

Gerard Hanratty, partner and head of health for Browne Jacobson LLP, told HSJ: “Currently, we are in unchartered waters in terms of the global scale of the pandemic and how our health and social care systems are dealing with it. Without doubt there will be numerous investigations/inquiries and reports once the immediate crisis is contained.

“From the perspective of NHS organisations, it is important that they clearly record how they have made decisions during the emergency period. Clearly recorded information on what decisions were made and the reasons for them, will provide the best way for the NHS to answer any future questions on how they dealt with the pandemic.”