The government is preparing for a raft of negligence cases over its handling of the coronavirus pandemic. openDemocracy has learned that lawyers have insisted that any payouts to families of NHS staff who have lost their lives to COVID-19 must come with a legal warning that “the government accepts no liability for the death”.
Lawyers advising the Department of Health and Social Care are working out the legal framework after the announcement this week of a £60,000 ‘death in service’ scheme connected to the fight against COVID-19.
So far the prime minister and senior ministers have insisted that every decision taken by the government was the ‘right one made at the right time’.
Linking the £60,000 payment to a legal caveat of ‘no responsibility’ is “a clear sign that the government wants to appear compassionate, but recognised it must seriously prepare for the negligence claims it knows is coming down the line”, said a leading barrister who specialises in medical negligence and spoke to openDemocracy on condition of anonymity.
The reported death toll for frontline health workers is expected to pass 150 in the coming weeks, as news of failings in the provision of personal protective equipment (PPE) continues.
Matt Hancock, the health secretary, has expressed a “deep personal sense of duty” to care for the relatives who have lost someone. However, his department’s lawyers have been more pragmatic by laying down guidelines that will determine who qualifies for the £60,000 scheme.
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Despite the warning on liability, though, the government has stated today that the £60,000 payment will not prevent beneficiaries from pursuing further legal action.
While the death-in-service payments could cost the government below £10 million, legal experts have told openDemocracy that the likely bill for fighting further liability claims could be as high as £100 million.
Payment ‘does not go far enough’
An early indication of the territory negligence claims could be fought over came from Intisar Chowdhury, the son of a doctor who died after contracting COVID-19.
During a radio show on Tuesday, Intisar Chowdhury told Hancock that his father – Abdul Mabud Chowdhury, a consultant urologist at the Homerton hospital in London – had sent a letter to Boris Johnson warning of early shortages of PPE, but it had been ignored. He asked: “Do you regret not taking my dad’s concerns seriously?”
Two weeks after sending his warning letter, Abdul Mabud Cowdhury passed away. Since then over 100 NHS and social care staff have died.
Intisar Chowdhury told the BBC: “The government’s response in not only handling the PPE crisis but the whole crisis, wasn’t the best.”
He described the £60,000 scheme as “a step in the right direction” but said it did not go far enough.
A former treasury solicitor, now working as a commercial lawyer, said Hancock could yet be forced to raise the payout level.
“Given the record UK deaths from COVID-19, this [£60,000] could yet become a down payment,” he said. “For many families an arduous road lies ahead, because any claims could have to wait on a public inquiry into the handling of this crisis – and that may take years.”
An investigation by the BBC’s Panorama programme highlighted deficiencies in the government’s plans to stockpile PPE and exposed failures in the supply and distribution chains that led to shortages of protective equipment where it was most needed.
The barrister with experience of handling claims against the government said: “The sum of £60,000 is very little if the deceased person was working and had dependents at the time of working.”
He agreed with the former treasury solicitor that if settlements were reached with the government in respect of future claims, the £60,000 payment would probably be seen as a credit and deducted from the award in any successful claim.
“This scheme is a reasonably compassionate measure if it gets money to families quickly,” the lawyer said. He added: “If, however, there are significant hurdles to overcome, or its design effectively supplants civil claims, then it most certainly is not compassionate.”
The scheme, according to the Department of Health and Social Care, will require:
- an “occupational and situational test” to be passed.
- it will have to be clinically proved that in the fourteen days before symptoms emerged the individual had “been working in environments and locations where personal care was provided to patients or service users who had, or were suspected of having, contracted the virus”.
- it will have to be formally determined that coronavirus was the cause or a contributory factor in the death.
In other words, families of frontline NHS staff who die will not automatically receive a payment. They will have to apply for it and the NHS Business Services Authority will conduct a “verification process” before the money is given.
The health department said that the scheme would “permit the secretary of state to consider exceptional cases which may not fall within the eligibility criteria”.