With latest predictions that hospitals will soon be overwhelmed with Covid patients and oxygen supplies already running dangerously low in some hospitals, doctors have warned that they will face having to make life or death decisions in deciding who will get vital treatment in circumstances where there are no longer sufficient resources to treat every patient appropriately. Having to make such difficult decisions on a daily basis is challenging enough but if doctors fear that their decisions may lead to a criminal prosecution then it is understandable why they are calling for emergency legislation to protect them from criminal prosecution for unlawful killing.

But what about their vulnerability from a claim in clinical negligence? Whilst the majority of clinical negligence claims are covered by insurance, the civil process involved in proving negligence against a doctor can have a very damaging effect on their career as well as taking a mental toll whilst the claim is ongoing. It is difficult to envisage legislation being passed which gives immunity to a claim in negligence where the defence is lack of resources due to Covid. So does the law of negligence contain sufficient controls to ensure fairness when determining negligence in such a unique set of circumstances?

Proving liability in negligence involves establishing that there is a duty of care and that duty has been negligently breached which has in turn caused damage.

It is established law that a hospital trust owes a duty of care to its patients. If it is the defendant's case that necessary treatment was not given due to lack of resources as a consequence of Covid then a breach of that duty is likely to be established - but the issue will be whether the breach was negligent. The scope of the duty of care is to take reasonable care of the patient. If the defendant argues that their decisions on treatment were reasonably based on the patient's condition and resources available at the time then this is bound to be very persuasive if supported by written and oral witness evidence which clearly demonstrates that resources such as ITU beds, staff availability and treatments including oxygen and drugs were in short supply at the time decisions were made. In those circumstances a finding that the doctor/Trust was negligent is unlikely.

But would that be fair to the claimant who has suffered injury and loss as a result of an established breach of duty? Maybe the answer would be the introduction of a limited "No Fault Compensation" scheme in these circumstances. Such a scheme has been regularly mooted over the years but it has always faced strong opposition mainly due to the fact that it would be prohibitively costly with no resulting accountability for the medical profession.

Covid has produced difficult and challenging times for both the medical profession and for patients and is likely to continue for some time. Maybe the time is right to revisit the merits of such a scheme albeit on a very restricted basis.