As the Prime Minister continues his recovery from COVID-19 at St Thomas’ Hospital in central London, it is to be hoped that he will have enjoyed the best the NHS has to offer: care provided by well-trained and highly experienced doctors and nurses wearing Personal Protective Equipment (“PPE”).
Unfortunately, there have been numerous reports that hospital staff are lacking PPE. Three nurses were reported to have started wearing bin bags because they had not been provided the necessary PPE. All three were diagnosed with the virus. Worryingly, a survey by the British Medical Association revealed that 55% of doctors working in high risk environments felt pressurised to work despite not having PPE.
There is no doubt that the Government owes a moral duty to provide those on the frontline fighting this virus with the tools they need to work safely. Beyond the undeniable moral duty, does the Government owe them a legal duty as well?
Health and safety legislation
Section 2 of the Health and Safety at Work etc Act 1974 (“the Act”) provides that, so far as is reasonably practicable, it shall be the duty of every employer to ensure “the health, safety and welfare at work of all his employees.”
More specifically, regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 (“the PPE Regulation”) 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) of the PPE Regulation sets out a number of criteria which PPE must comply with in order to be considered suitable. By law, PPE is not considered suitable unless:
By virtue of section 9 of the Act, an employer is not allowed to levy or permit to be levied any charge in respect of the employer’s compliance with these obligations.
What does this mean in practice?
First, NHS Trusts have a legal obligation to provide PPE to all their employees. Any employee who runs a risk of being infected by COVID-19 must be provided PPE. This includes non-medical personnel, such as cleaning staff and administrative support staff working in an environment where exposure to COVID-19 is possible.
This point is of general application. Employers have a legal duty to provide PPE. This includes bus and train drivers, supermarket employees, cleaners and anyone else who is on the frontline (of what).
Second, PPE must be provided for free. Employees cannot be made to pay for their own PPE. There is no suggestion that any NHS Trust has ordered their employees to foot the bill for their own PPE equipment. However, reports suggest that doctors and nurses have had to buy their own makeshift equipment, which may not be as effective as tried and tested PPE.
The lack of PPE appears to stem from poor preparedness. On 27 March 2020, “The Guardian” reported that in 2017 the Department of Health rejected advice that medical staff be provided with eye equipment in a pandemic because stockpiling the equipment was not economically viable. In other words, it appears something could have been done but no action was taken because it was too expensive. At the very least, the Government should consider reimbursing those staff members who have dipped into their own purse to protect themselves.
Third, PPE must be tested to ensure that it complies with the PPE Regulation. The Health and Safety Executive has conducted a rapid review of the safety of the PPE the NHS proposes to use. On 2 April 2020, the Government published fresh guidance on PPE usage. It appears efforts are underway to ensure PPE is compliant with the PPE Regulation.
Can staff force hospitals to provide PPE?
The Act expressly prohibits employees from taking their employers to court over breaches of the Act. This is subject to two important caveats.
First, hospitals still owe duties to their staff at common law. They must ensure they do not cause their staff personal injury. If they do, employees may have a claim against them. For example, if a nurse or doctor is infected with COVID-19 because of a failure to provide PPE, the Act does not prohibit them from seeking damages for that personal injury.
Second, NHS Trusts are public bodies. They must not act in a way that is incompatible with the Human Rights Act 1998. Article 2 of the European Convention on Human Rights (“ECHR”) protects the right to life. The State has a positive obligation to protect the lives of those to whom it owes a duty—including employees of NHS Trusts.
In Smith and others v Ministry of Defence  UKSC 41, the Supreme Court grappled with the question of whether the State had an obligation to provide serving soldiers on deployment abroad with equipment that would sufficiently protect them from harm. The claims arose out of a number of deaths during the UK’s involvement in the 2002 Iraq War.
At paragraph 65, The Supreme Court reiterated the point of principle set out by Lord Bingham in A v Secretary of State for the Home Department  2 AC 68 that
“the more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, and the less likely it is to be an appropriate matter for judicial decision.”
The Supreme Court analysed a number of authorities from the European Court of Human Rights relating to the state’s obligations to its soldiers. It found the following themes emerged:
Having reviewed the case law of the European Court of Human Rights, the Supreme Court identified three different categories of claims at paragraph 76.
First, there are claims relating to
“the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy.”
These sorts of claims are beyond the scope of Article 2 ECHR.
Second, there are those claims that
“relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy.”
Those too are excluded from the scope of Article 2 ECHR.
But there is a third category, a middle ground between the two where no hard and fast rule can be laid down. The Supreme Court said that whether those sorts of situations are open to review by the courts will be a question of judgement which can only be exercised in the light of the facts of each case.
An analogy could be drawn with the current situation of NHS staff faced with PPE shortages. Arguably, the situation of NHS staff is clearer because the second category identified by the Supreme Court does not apply to them. In Smith the Supreme Court was asked to adjudicate on an area courts—both national and international—traditionally shy away from: the allocation of resources for the prosecution of a war. Despite the martial rhetoric from Government, legally speaking the NHS is not fighting a war.
Does Smith mean the Government has breached the Article 2 ECHR rights of any doctors, nurses or support staff? No. But Smith means that procurement of PPE may not be immune to scrutiny by the courts—through judicial review or claims under the Human Rights Act 1998, for example. It will be for a court to decide, based on the evidence, whether Article 2 ECHR rights have been breached.
The Government’s duty to provide PPE to those on the frontline of the fight against COVID-19 is both moral and legal. Current shortages are putting lives at risk. Doctors and nurses have already died as a result of infection. Amid reports that NHS staff are being gagged and prohibited from publicly speaking about COVID-19, NHS Trusts must do more to ensure they are complying with their legal obligations.
Once the current pandemic abates, the country will need a full Public Inquiry under the Inquiries Act 2005 into the Government’s response to the pandemic. We are told that COVID-19, or other viruses of its kind are here to stay. An inquiry would ensure that next time a pandemic hits we will be satisfied that the NHS and its staff are properly equipped, safe and ready to fight it.
9 April 2020