The effect of staff shortages on standards of care and litigation

The NHS is due to provide its usual review of its performance. There can be few people who will anticipate it indicating anything other than significant difficulties. But if you are taking a legal claim, or considering one, do the practical problems affect the claim?

The standard of care legally by which cases are judged is the standard of a reasonable medic, nurse or other practitioner. There isn’t a separate standard of care for wards that are short staffed. There isn’t a standard of care for emergency departments that are overflowing with people queued in ambulances. The reality however is that we know that there are insufficient nurses, and we know that the ambulance service is on its knees. How do we marry these two realities in a claim?

There isn’t a clear way of doing it but in practice guidelines for “good“ or “acceptable” practice (I use the word with caution) tend to change with circumstances. However, we all might assume that standards increase with improved knowledge, understanding and treatments. This is not always the case however and real life can intervene.

Ambulance practices

Let’s take the example of ambulance practices. The old standards worked on the following basis –

There were previously two response time targets:

• 75% of category A (immediately life-threatening) calls should receive a response within eight minutes
• if a category A patient required transport, this should have arrived within 19 minutes of the request for transport being made, 95% of the time.

However, new targets changed the categories and timings, which are now as follows:-

1. Immediate life threatening – 90% between 7-15 minutes
2. Serious rapid assessment – 18-40 minutes
3. Less urgent – up to three hours.

Recent research indicates ongoing and severe problems https://www.nuffieldtrust.org.uk/resource/ambulance-response-times#background.

The Nuffield group shows that category 2 response times are now on average over an hour and 90% are between 18 minutes and 2 hours 17 minutes.

Further, for category 4 (less urgent) cases according to the Nuffield Trust In March 2022 the 90^th centile for wait times was 9 hours 56 minutes .

It is not hard to see how the standards change (currently mostly downwards) as resources and services are diminished. What was an appropriate standard of care can go down as well as up.

It is likely that in due course the timings of the various categories will now change to reflect in part the length of time “non urgent” cases must wait. Whilst the change for the most urgent is unlikely to come, the pressure on the system may well be reflected for those who come in the lowest category of need. Thus, as the guidelines change, the standard can be perceived as changing.

Reduced standards

Even where there are not set times, the reality is medical experts often build in, unconsciously perhaps, some safeguards for the time that it takes to process matters. You will often read in reports comments “in a busy A&E department this may take over an hour”. The standard of care is not the busy emergency department, but the reality is that the system doesn’t assume exemplary care ignoring the context in which it occurs.

For someone who has come in with a condition that is not time critical that is less of a problem. For somebody who has come in with a vascular or spinal cord problem or an infection issue then clearly those time critical periods become even more important.

Covid has placed this at a different level. The lockdown, the cutbacks, the shortage of trained professionals and available beds have all created a situation where deadlines and guidelines for dealing with matters have had to change and as they have done so the standards and timings by which things are done have changed. What was deemed normal care didn’t stay normal care and hasn’t returned to normal care.

No one criticises the NHS for the amazing response to the pandemic. Nobody could criticise the paramedics, GPs and other services that are just completely overwhelmed. Not seeing people face to face and an inability to make appointments have their impacts.

The reality is though as we are already beginning to find in reports references to the specific problems of the pandemic and the ongoing aftereffects. We simply haven’t returned to the care we had available. That change in standards which is in effect a reduction, whatever its cause, may ultimately have an impact on cases that can be taken forward and on the innocent claimants at the end of the process.