The legal rights of healthcare workers to personal protective equipment during the COVID-19 pandemic – by James Robottom

As the COVID-19 pandemic develops, the availability and adequacy of personal protective equipment (‘PPE’) for clinicians and others working on the frontline of the impact of the virus has become a matter of national concern. This post will examine the actionable legal rights of healthcare workers in England Wales who come into direct contact with COVID-19 patients to adequate PPE. It will compare the private law rights of workers to those under the European Convention on Human Rights (‘ECHR’), and offer a view as to how the law might be used most effectively to secure healthcare workers with the protective equipment they so desperately need.

 

The PPE issue:

Like all facts in this crisis, those relevant to the provision of PPE are moving fast. As the epidemic has progressed in England, public concerns have been raised about the lack of PPE for keyworkers across a range of vocations: social care workers, retail assistants, bus drivers – there is no exhaustive list. Understandably, however, the most persistent and concentrated focus of reporting and complaint has been the lack of protection for healthcare staff. One of the sad features of the pandemic is the disproportionate rate of both infection, and mortality, in doctors, nurses, and other healthcare workers. This article will therefore concentrate their legal rights to PPE. The private law legal principles it outlines are generally equally applicable to other keyworkers, but the position of healthcare workers differs from those employed by private companies in that, because they are employed by the state (albeit generally through NHS Trusts), human rights law and EU law may also apply.

In the early days of the epidemic the British Medical Association (BMA) was instrumental in raising concerns about PPE for doctors. It issued guidance emphasising that doctors are not ‘under a binding obligation to provide high-risk services where [their] employer does not provide appropriate safety and protection.’ Stuart Brittenden has analysed elsewhere on this blog the right of workers to refuse work, but the signs are that the vast majority of clinical staff with inadequate PPE have chosen not to do so, but rather to risk their own health in order to protect the lives and health of patients.

Prior to 5 April 2020, there were two issues in relation to PPE for clinical workers: the availability of the recommended equipment; and the differences between the PPE Guidance issued by the World Health Organisation (‘WHO’) Guidance and our national joint Public Health England (‘PHE’) Guidance issued to cover NHS staff. However, following public pressure and a rapid review of the Guidance ordered on 27 March, on 5 April the joint guidance was updated.

 

What were the differences in the WHO and NHS Guidelines?

The WHO’s Interim Guidance on the Rational use of PPE for Coronavirus Disease was issued on 20 March 2020 and last updated 6 April. It makes clear that the current global stockpile of PPE is insufficient and that the capacity to expand PPE production is limited. It advises an approach that minimises the need for PPE whilst seeking to ensure that it is available for the workers who need it most.

The WHO Guidance for health care workers in the ‘direct care of patients’ is to use gowns, gloves, medical mask, and eye protection (goggles or face shield). Workers undertaking aerosol generating procedures (‘AGPs’, which carry a greater risk of infection) require greater protection, including respirators (as opposed to medical masks) and fluid resistant gowns. Prior to 5 April, the PHE Guidance recommended that workers within one metre of possible or confirmed COVID-19 patients (which included workers collecting nose and throat swabs from those patients), but not conducting AGPs, wore gloves and medical masks in line with the WHO Guidance, but only an apron rather than a gown, and there was no blanket requirement as to whether disposable eye protection was required. Those further than one metre from confirmed or possible cases, who may still have fallen within the WHO definition of providing ‘direct care’, received still less protection.

On 5 April the joint PHE guidance was updated, to ‘reflect pandemic evolution and the changing level of risk of healthcare exposure to SARS-CoV-2 in the UK.’ Crucially, the new guidance recommends eye and face protection not just for those undertaking AGPs, but also for all those working in a hospital setting with possible or confirmed cases, those transferring such patients, and those in the extremely vulnerable group undergoing shielding. The new Guidance ditched the one metre category in favour of a better defined set of clinical situations. It also widened the recommended use of gowns.

Issues relating to the differences between the PHE and WHO Guidance therefore appear to have been resolved. However, the reports of inadequate PPE have not stopped. Sadly, the change in the Guidance also came after the first reports of deaths of doctors and nurses in England engaged in the active treatment of infected patients.

 

What protection does private law provide for NHS workers in direct contact with confirmed and possible COVI-19 patients?

The most obvious starting point in English law is that all workers in England Wales have a right to suitable PPE under the Personal Protective Equipment at Work Regulations 1992, regulation 4(1) of which provides:

Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.

Regulation 4(3) states that PPE “shall not be suitable unless”, amongst other things:

(a) it is appropriate for the risk or risks involved, the conditions at the place where exposure to the risk may occur, and the period for which it is worn;

…

(d)  so far as is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk;

Liability under the 1992 Regulations is strict, but since amendments made to the Health and Safety at Work Act 1974 in 2013, they are no longer actionable in themselves in tort, and so can longer be relied upon directly to found a legal challenge. However, all employers owe a non-delegable common law duty to provide employees with a reasonably safe workplace and safe system of work. The standard of reasonableness and necessity for any damage to be foreseeable at common law provide a harder test to satisfy than the strict test under the Regulations – Threlfall v Hull City Council [2011] ICR 209. However, the terms of the PPE Regulations should clearly inform the content of a common law duty. As Lords Reed and Hodge stated in Kennedy v Cordia (Services) LLP [2016] UKSC 6 [64] ‘the expansion of the statutory duties imposed on employers in the field of health and safety has given rise to a body of knowledge and experience in this field, which … creates the context in which the court has to assess an employer’s performance of its common law duty of care’. In other words, in order to assess ‘what steps reasonable and conscientious employers can be expected to take to provide a reasonably safe workplace and system of work’, a court may look to the Regulations – Cockerill v CXK Ltd [2018] EWHC 1155 (QB). Further, an employer has an anterior common law duty to conduct a risk assessment in respect of all reasonably foreseeable risks.

The core common law question is likely to be whether the steps taken by the relevant NHS bodies to provide adequate PPE were, and are, reasonable. On the change in guidance, key questions are likely to be: what evidence did PHE rely upon to advise upon a lower standard of PPE than the WHO? Did it have risk assessments that support its position?  On the availability issue, the questions will include: how foreseeable was the need for such equipment on such a scale? What procurement steps should have been taken to prepare clinical workers in advance? And were adequate steps taken to secure PPE at relevant different stages as the need intensified?

Safety is a relative concept, and foreseeability plays a part in determining whether a common law duty workplace place is safe – see Baker v Quantum Clothing Group Ltd [2011] ICR 523, where the Supreme Court also held that the state of an individual employer’s knowledge of a specific form of risk was relevant to the question of when it was reasonable to take steps to ameliorate it.

There may be limits, however, to what a common law negligence claim can achieve. First, a claim in negligence requires actionable damage. As a diagnosable disease COVID-19 would certainly constitute actionable damage. Damages for any pain, suffering, or anxiety caused by the diagnosis are in principle recoverable. But causation would likely prove a significant hurdle. In a standard tort case it is necessary to prove on balance that a breach of duty (i.e a failure to provide adequate PPE) at least materially contributed to the injury. But that is likely to be impossible in the case of COVID-19, as it will be impossible to know exactly how and when an infection took place. Due to the difficulties of establishing aetiology in clinical and workplace disease claims, however, the courts have developed alternative methods of establishing causation. It could be argued that the well-known principle in Mcghee v National Coal Board [1973] 1 WLR 1 should apply: that where it is impossible to say that a breach caused or contributed to an injury (where an injury may have occurred but for the breach in any event) – it is sufficient to establish that a breach materially increased the risk of the injury. See also Brown v Corus (UK) Ltd [2004] PIQR P30 – where the Court of Appeal held in a vibration white finger case that causation was established where there was a breach of duty to provide protection, which exposed the employee to an increased risk of suffering.  Alternatively, it may also be possible to argue on the right evidence than an epidemiological approach to proof of legal causation should be adopted – i.e that if the proper PPE had been available the risk of transmission would have been more than halved. Such an approach to causation was doubted obiter by some justices in the Supreme Court in Sienkiewicz v Greif [2011] 2 AC 229, but absent further authority remains it remains a pleadable basis for causation  – see the discussion in Rich v Hull & East Yorkshire Hospitals NHS Trust [2015] EWHC 3395 (QB) at [142]–[143] (per Jay J).

Whilst causation would undoubtedly prove a significant hurdle, a more critical consideration may be the nature of private law tort claims. They are slow, and principally retrospective in their application. The aim of a tort claim is to redress a wrong by putting a claimant so far as possible in the position he or she would have been in if the tort had not occurred. If the aim of an action is to address quickly an ongoing breach of duty and stop it in its tracks – to make the PPE available on the ground for those in need, and/or to succeed in a public finding in court that workers’ rights have been breached – then the preferable remedies would be an injunction, a mandatory order, or perhaps a declaration.

Injunctions are not generally available in negligence claims – see comments of Lord Denning in the famous cricket club case Miller v Jackson [1977] QB 966. In a 2007 Article John Murphy argued that injunctions should be available in negligence (absent nuisance) to prevent ongoing breaches of the right to a safe system of work. But an alternative may be a claim in contract. There is an implied term in every contract of employment that an employer will provide a safe system of work. The term is similar, if not identical, in format to the content of the common law duty of care. It is more common for work system and PPE claims to be brought in tort, but there is no reason in principle why such claims cannot be brought in contract. A contractual claim would in principle make the remedy of an injunction available. But a court would not grant an injunction which a defendant did not have within its power to satisfy. That may be especially important in a scenario where there are both national and  worldwide shortages of PPE (as recognised by the WHO Guidance). Lizzie Barmes has argued forcefully in favour of legislative intervention to provide injunctive relief to enforce implied contractual employment rights. But the problem with such a claim would most likely lie in its enforceability, as opposed to the potential availability of the remedy to the court. Followed to its logical conclusion, injunctive relief may lead to an undesirable factual scenario in which NHS Trusts were obliged in law to prevent workers treating patients, because they were unable to provide them with adequate PPE. It is hard to see a court countenancing such a claim during a public health emergency. And there could be little appetite for litigation in which a court found itself having to balance the rights of patients to treatment against the rights of clinicians to protective equipment.

EU law may also be of relevance. The 1992 PPE Regulations implement the EU PPE Directive 89/686 EEC. Injunctions are available for the domestic enforcement of EU law rights – Factortame [1991] 1 AC 603. These issues concern the vertical, and not horizontal, enforcement of rights, at least in a healthcare context. The Directive can still be relied upon in English courts during the transition period of the UK’s exit from the EU, under the terms of the European Union (Withdrawal Agreement) Act 2020. However, the addition of an EU law claim, whether based on the direct effect of the provisions Directive, or on an argument that its terms should be interpreted into tortious and contractual duties to provide PPE, is likely only to be of any utility in such a case where the scope and applicability of tortious and contractual common law duties do not provide sufficient protection.

 

Human Rights Law:

Could human rights law offer a remedial alternative? As Lord Bingham set out in R (Greenfield) v SSHD [2005] 1 WLR 673 at [19], the Human Rights Act 1998, through which ECHR rights can be enforced in domestic courts  ‘is not a tort statute. Its objects are different and broader.’ Both damages and injunctions can be awarded under the HRA; under s.8 a court has wide remedial powers. Further, an HRA claim could be brought in the High Court by way of judicial review, a procedure well suited to the expeditious enforcement of rights, where it is likely to be resolved more quickly. But a finding of breach also serves a different purpose to a private law claim, and the finding of a breach of the Convention in itself ‘will be an important part of [a claimant’s] remedy and an important vindication of the right he has asserted’ (Greenfield at [19]). A further advantage is that causation under the ECHR is less strict than is generally the case at common law. In order for an HRA violation to be found, it is not necessary to establish that but for the relevant breach, certain damage or injury would not have occurred, although a lack of a causative link may sound in the quantum of any damages awarded – Sarjantson & Another v Chief Constable of Humberside Police [2014] QB 411.

Dr Elizabeth Stubbins Bates of the Bonavero Institute at Oxford University has argued that a failure to provide adequate PPE for NHS workers in the current crisis may violate the UK’s positive obligations to protect life under Article 2 ECHR. Stubbins Bates answers ‘emphatically yes’ to the question whether the positive duties apply during the pandemic – that must be the case by virtue of Article 2’s non-derogable status. However, it tells one little about the structure of the relevant rights or the case for a failure to provide adequate PPE constituting a  breach. I agree that there is a case for breach of the positive obligations to protect life under Article 2 in the present PPE crisis. However, it is submitted here that the structure of the breach argued for by Dr Stubbins-Bates requires some modification.

Article 2 entails not just a negative duty on the state not to take life, but it also imposes substantive positive duties on the state, based on the need to make the right to protect life and to make the right effective. Broadly speaking, there are two substantive positive duties. Firstly the general (or systemic, or framework) substantive duty to protect life, which requires the state to put in place a legislative and administrative framework which protects the right to life. That includes obligations in the public health sphere, which require states to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of patients’  lives – Tarariyeva v Russia (2009) 48 EHRR 26, at [73]. The systemic duty can extend to issues relating to training and the procurement of equipment – Oneryildiz v Turkey (2004) 41 EHRR 325, [89], cited in Smith v MOD [2014] AC 52 [68]. The second positive substantive duty is the operational duty to take preventative measures to protect individuals in specific circumstances from a ‘real and immediate’ risk to their lives, from the acts of third parties, natural disasters or dangerous activities, where the state knows, or ought to know, of that risk. The operational duty is frequently referred to by the name of the case in which it was first recognised by the EctHR: Osman v UK (2000) 29 EHRR 245.

Dr Stubbins-Bates’ argument is that the operational obligation applies where there has been a failure to procure PPE in advance. She links this argument to the those relating to systemic failures to provide equipment argued for in the domestic solider cases R (Long) v SSHD [2015] 1 WLR 5006 and Smith. But the Supreme Court’s decision in Rabone v Pennine Care [2012] 2 AC 72 makes clear that the circumstances in which the operational duty applies are limited. There is no reported case where state employees working in dangerous situations have been held to be subject to the operational duty. As Dr Stubbins Bates rightly recognises, positive obligations must not be interpreted to impose an ‘impossible or disproportionate burden’ on the national authorities  – and it is hard to see how, if healthcare workers can be subject to the operational duty, staff of other emergency services, and also other state employees working in dangerous situations would not also be. That would be a principle of potentially very wide application indeed.

In Rabone the Supreme Court expanded the scope of the operational duty to include non-detained mental health patients who were under the effective control of the state. Lord Dyson did not rule out the further expansion of the operational duty. In particular at [23], he observed that in circumstances of sufficient vulnerability the ECtHR has recognised the existence of the duty even where there is no state assumption of control – e.g. in child abuse cases. But he also noted that in Stoyanovi v Bulgaria (Application No 42980/04), 9 November 2010, the ECHR drew a distinction between dangerous activities which a soldier must expect as part of his ordinary military duties and exceptionally dangerous situations caused by the violent, unlawful acts of others or man-made or natural hazards.  The operational duty will only apply in the latter situation. The question is really whether the work of health workers during the COVID-19 crisis falls into the latter category. Is the COVID-19 crisis so exceptional as to effectively create a new category for the application of the duty itself, which would not extend to others in emergency situations or to healthcare staff not operating during a pandemic? Or would the courts be wary of the disproportionate burden issue, and consider that the state was not in sufficient control of workers’ welfare for the duty to apply?

A better case, it is submitted, can be argued for a breach of the systemic duty in the present crisis. As Dr Stubbins-Webb correctly argues, the ‘exceptional circumstances’ in which a systemic breach in relation to the care of patients will arise are now well established, following the decisions of Grand Chamber of the ECtHR in Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28 and the High Court in R Parkinson v HM Senior Coroner for Kent [2018] 4 WLR 106. Whilst not directly on point, they may assist in drawing an analogy with the PPE crisis. The second of exceptional circumstances is:

Where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients’ lives, including the life of the particular patient concerned, in danger. [Lopes de Sousa at 192],

Questions of procurement and pandemic planning in relation to PPE fall into an analogous category. Although there may be an overlap as regards the duty to obtain PPE once the nature of the crisis had become apparent, it is clear from the categories set out by the Grand Chamber that there is a degree of overlap with operational concerns. Given the experiences of countries with comparable health systems which were hit with the full force of the pandemic prior to the UK, such as Italy and Spain, there is a good argument that the UK Government either knew or ought to have known that a crisis in PPE availability was imminent. The fast moving nature of the pandemic crisis will be a factor to bear in mind when addressing the disproportionate burden question – but it is submitted it should not be determinative. Human rights standards should be upheld, and not diluted, during times of political crisis.

It is here that a further analogy can be drawn with the case law relating to the equipment and resources allocated to soldiers. In Smith the the families of soldiers killed on duty in Iraq brought claims under the HRA and in negligence relating to the provision of protective equipment (armoured land rovers) for soldiers on active duty in Iraq. The Supreme Court upheld the trial judge’s decision to let systemic, but not operational, claims proceed. Lord Hope stated that although an unrealistic or disproportionate burden should not be imposed on the state in planning and conducting military operations, the court ‘must give effect to [the article 2] obligations where it would be reasonable to expect the individual to be afforded the protection of the article.’ The closer the decisions were to a higher level of command, to the exercise of political judgment and issues of policy the further beyond the reach of Article 2 they would be [76]. The same would apply the closer the decisions were to actual conflict on the ground. But there was a middle ground where claims could be properly brought. Importantly, Lord Hope apparently concluded, having surveyed the ECtHR jurisprudence, that civilians who had not undertaken the obligations and risk associated with life in the military should be afforded greater protection by the Convention [71]. The Court of Appeal in Long applied Smith, and held that a control system failure in relation an order to provide soldiers with iridium phones fell into Lord Hope’s middle ground, and therefore arguably constituted a breach of Article 2 (although the appeal was nevertheless dismissed as the investigative positive duty had already been discharged on the facts). It is submitted that national failures in relation to the procurement of PPE and the previous differences in the WHO and PHE Guidance fall squarely into this category. Healthcare workers go into their jobs aware of the normal risks they entail, but it is the role of Government and the NHS to plan and procure PPE for contingencies such as pandemics where far greater risks than may be engaged than in the normal course of events.

Further assistance on the scope of the systemic duty can be derived from the ECtHR case law on emergency relief in natural disasters. The ECtHR has held in the sphere of emergency relief, where the State is directly involved in the protection of human lives through the mitigation of natural hazards, that the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation – Budayeva v Russia (15339/02) (2008) 14 EHRR 2  [136-137]. If nevertheless damage arises, it will only amount to a breach of the State’s positive obligations if it was due to insufficient regulations or insufficient control, but not if the damage was caused through the negligent conduct of an individual or a concatenation of unfortunate events – Stoyanovi v. Bulgaria, no. 42980/04, 9 November 2010 [61]. On the other hand, whenever a State undertakes or organises dangerous activities, or authorises them, it must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum – Mučibabić v. Serbia (2017) 65 EHRR 35, at [126].

A final mention should also go to the procedural, investigative duty positive duty under Article 2 ECHR. This is normally fulfilled in England and Wales by the inquest process – see R Middleton v HM Coroner for Western District of Somerst & anor [2004] 2 AC 182 and s.5 of the Coroners and Justice Act 2009. In order for the investigative duty to be engaged in respect of a death it need only be ‘arguable’ that a breach of one of the substantive positive Article 2 duties has been violated. There is a much lower threshold for the engagement of the duty than for a breach actionable under the HRA, which must be established on evidence on balance. COVID-19 will not necessarily necessitate an inquest, because fatalities are likely to be considered ‘natural causes’ deaths (although there is nothing to stop a family member reporting a COVID-19 death to a coroner) – s.1 CJA 2009. This is not the place for a detailed discussion of the role of the investigative Article 2 duty in the COVID-19 crisis, but it seems inevitable that, whether through specific inquests, via an eventual public inquiry, or even via direct legal claims as countenanced in this article, it will be required to be satisfied in due course in relation to the provision PPE for healthcare workers.

 

Conclusion:

At the time of writing, it has just been reported that Zimbabwean doctors have brought legal proceedings against their Government in order to ensure access to adequate PPE. A similar claim in England is feasible, but in a manner typical of the hotpotch of remedies, causes of action, and court jurisdictions that is the English civil legal system, it raises questions as to the type of claim relied upon. The requirement that all workers are provided with a safe system of work – including the provision of adequate PPE – has long been a fundamental private law principle. However, the greater flexibility as to procedure and remedy offered, and the wider purpose behind a Human Rights Act 1998 claim, may offer a preferable route through which the fundamental rights of healthcare workers to the protective equipment they so desperately need during the current crisis can be vindicated.

 

About the author: James Robottom is a PhD candidate at King’s College London and a practising barrister at 7BR, where he has a multidisciplinary practice with particular focus on tort and human rights law.

 

 

(Suggested citation: J Robottom ‘The legal rights of healthcare workers to personal protective equipment during the COVID-19 pandemic’, UK Labour Law Blog, 13 April 2020, available at https://wordpress.com/view/uklabourlawblog.com)