Coronavirus: could government face legal questions over the death of NHS workers during PPE shortage?
Rachel Nir’s article for The Conversation has been read nearly 5,000 times by people across the world
Rachel Nir is a Reader in Legal Education and Inclusion at the University of Central Lancashire’s (UCLan). The former litigator and regulatory lawyer in the City has written an article forThe Conversation about the legal issues around shortages of PPE during COVID-19.
Up to now, the article has been read nearly 5,000 times by people from across the world, including in the Unites Sates of America, Australia, Germany and France.
Rachel’s article - Across the UK, the bereaved families of healthcare professionals are asking why their loved ones were sent to the medical front line without the personal protective equipment they need to protect themselves from COVID-19.
“We’re angry. Why would you send a soldier on to the front line without combat gear? It’s unthinkable,” said the widow of nurse Gareth Roberts, who died on Easter Saturday.
The irony is that many soldiers have experienced the UK government’s apparent lack of concern for their right to life long before today’s healthcare staff. Cost- benefit analysis has always been the name of the game. When the UK ventured into its expeditionary war in Iraq in 2003, approximately 2,000 soldiers arriving at the front line faced with chronic equipment deficiencies, including night vision goggles, body armour and armoured vehicles.
A series of inquests and cases followed, during which families challenged the government’s failure to protect the lives of its soldiers. Tank commander Sergeant Steve Roberts died when he was not supplied with his own set of enhanced body armour. This kit would have cost £167. The Oxfordshire assistant deputy coroner Andrew Walker concluded:
To send soldiers into a combat zone without the appropriate basic equipment is, in my view, unforgivable and inexcusable and represents a breach of trust that those soldiers have in the government.
"To send soldiers into a combat zone without the appropriate basic equipment is, in my view, unforgivable and inexcusable and represents a breach of trust that those soldiers have in the government."
There are parallels with the government’s position on health workers now. Its owninfluenza pandemic strategy states specifically, “the government has in place stockpiles of face masks and respirators for health and social care workers”.
Recent media reports, however, revealed that the Department of Health rejected the government’s own specialist advisory body’s advice in 2017 to stockpile eye protection, reasoning:
The cost of the PPE component of the pandemic stockpile would increase four to six-fold with a very limited likelihood of cost benefits.
This begs the question of how far the state is required to go to protect the lives of those who put themselves on the front line. The law is found in Article 2 of the European Convention of Human Rights and the related case law which requires states to take appropriate steps to safeguard the lives of those within their jurisdiction.
Authorities have an obligation to take preventive operational measures to protect lives; this includes the lives of NHS workers so far as it doesn’t impose an “impossible or disproportionate burden” on the authorities.
The crux then is what is reasonable. How should the cost of taking these steps be balanced against the level of risk? It’s an age-old problem. The legal system is geared towards allowing the state to achieve its objectives, whether for defence or public health, without being unduly inhibited by fear of liability.
A wide margin of discretion is afforded to those with responsibility for planning as the decisions they have to make are about policy. That makes them a matter for government rather than the courts. This was confirmed in a court ruling in 2013 but it was also noted that there is, in principle, an obligation on the UK government to respect the right to life when making operational decisions.
The government’s approach should be realistic and proportionate: if the risk is low, so too is the obligation. This court ruling does mean that decisions made are open to scrutiny. Whether the UK government has met its obligation will depend on the facts.
Coroners’ inquests may become an important forum for determining whether the government has adequately safeguarded the lives of its health workers during this pandemic. A coroner can look at a death from COVID-19 in circumstances where the death was unexpected and there are allegations of culpable human failure. Coroners would be able to call evidence to understand what steps the Department of Health took to protect life. This would impose an obligation on those with responsibility to explain decisions made as to the procurement of PPE.
Bereaved families may also be able to bring claims in the civil courts, under the Human Rights Act 1998, for breach of a loved one’s right to life – a group action on this would not be surprising.
The government is clearly sensitive about this. Statements made in its daily briefings suggest defensiveness and of the government shoring itself up against liability. Health Secretary Matt Hancock’s comments that health workers could have caught COVID-19 “for all sorts of different reasons” and that he is “not aware of any link” between health workers’ deaths and a shortage of PPE invited wrath from the media, as did Home Secretary Priti Patel’s careful apology that she was “sorry if people felt there had been failings” on PPE.
There will almost certainly be a public inquiry after the pandemic which would look at whether there were overall health system failures. There is the possibility, however, that inquests could be put on hold and ultimately subsumed by such an inquiry.
There is an important point to be made over and above the balance sheet analysis of the government’s strategy on preparing for this pandemic. The public response to NHS workers has been profound. A nurse’s willingness to work on the front line is understood by the public to involve personal sacrifice. However, society does not appear to accept arbitrary sacrifice. There must be a meaningful reason for a healthcare worker to lose their life.
We would not expect a fire fighter to die because they were not provided with fire retardant clothing. In the same way, the death of a nurse because they had only a pinny, gloves and a paper mask is arbitrary and almost certainly unacceptable to the public.