Care Home Deaths, Clinical Liability and the Case for a Necessity Defence

Clinical negligence and statutory indemnity

The pandemic created unprecedented pressures on the health service.

Medical staff worked in intense, stressful conditions, often without adequate PPE or equipment. With limited knowledge of how to treat the virus, mistakes were inevitable. The Coronavirus Act 2020 (CA 2020) recognises this reality.

It contains an indemnity clause allowing the Secretary of State for Health and Social Care to provide indemnity for clinical negligence arising from the outbreak. In effect, this removes tortious liability for clinical mistakes made during this period.

The rationale is understandable. It protects those working under extraordinary strain and allows hospitals to attempt new or unfamiliar treatments without fear of litigation.

However, I do not believe blanket immunity is appropriate. Context must be considered, but complete indemnity risks injustice for affected patients and prevents meaningful scrutiny of systemic weaknesses. With Brexit likely to reduce the number of doctors and nurses available, improving efficiency and specialist capacity is essential.

Prioritisation and the need for a common‑law defence

The shortages of funding, equipment and facilities meant not everyone infected could receive treatment. Hospitals prioritised certain groups, often sending elderly care‑home residents back to their homes without intervention. This raises political accountability concerns, but it also raises criminal law issues.

Once a patient is accepted into a hospital ward, medical staff assume a duty of care. Authorities such as Barrett v Ministry of Defence and R v Stone and Dobinson confirm that providing basic tests or care establishes this duty. If staff then omit to provide further life‑saving treatment, knowing death is almost certain, the elements of murder theoretically arise: an omission causing death and an intention to kill or cause grievous bodily harm (R v Cunningham).

This is where the comparison with R v Bland becomes relevant. In Bland, the court permitted withdrawal of life‑sustaining treatment for a patient in a vegetative state. The omission was lawful because continuing treatment was not in his best interests. That reasoning does not translate to the pandemic. Turning elderly patients away due to scarce resources is not acting in their best interests. It is prioritising others who have a higher chance of survival.

Why statutory indemnity is insufficient

The indemnity clause in the CA 2020 protects against civil negligence claims, not criminal liability. If prioritisation decisions theoretically amount to homicide, the question becomes: what criminal defence could apply?

This is where I believe the doctrine of necessity deserves renewed attention.

The relevance of Re A: Conjoined Twins

The case of Re A (Conjoined Twins) involved two sisters, Mary and Jodie. Jodie was sustaining Mary’s life, but could not do so indefinitely. Without intervention, both would die. The court authorised surgery that would save Jodie but accelerate Mary’s inevitable death. The doctors were protected from murder charges through the doctrine of necessity. The court reasoned that where two lives are in direct conflict, the lesser of two evils must be chosen.

Ward LJ also relied on a quasi‑self‑defence argument, noting that Mary was “sucking the lifeblood out of Jodie.” This distinguishes the case from R v Dudley and Stephens and complicates its application to the pandemic. Elderly patients are not threatening the lives of others. They are not the source of the problem; the problem is systemic underfunding and lack of equipment.

Could necessity protect healthcare workers?

Despite the limitations of Re A, I believe the broader formulation of necessity proposed by Sir James Stephen may be relevant. Stephen’s test requires that:

• the act is needed to avoid inevitable and irreparable evil
• no more is done than reasonably necessary
• the evil inflicted is not disproportionate to the evil avoided

In a pandemic, prioritisation policies arguably meet these criteria. Choosing to treat those with the highest chance of survival may be viewed as selecting the lesser evil in circumstances where resources are insufficient to save everyone.

Ethical concerns

The moral implications are profound. Prioritising younger patients risks reinforcing the idea that society values some lives more than others. It suggests that economic potential outweighs experience, wisdom and past contribution. It raises the uncomfortable question: do we reach an age where society discards us?

Alternatively, prioritisation may simply reflect statistical reality. Younger patients have a higher chance of survival. Treating them first may reduce overall harm.

Yet this analysis is incomplete. Sending infected residents back to care homes does not only determine their fate; it determines the fate of entire communities. Care homes are environments where isolation is difficult, and transmission is rapid. The consequences extend far beyond individual patients.

Conclusion

The pandemic has exposed gaps in both statutory and common‑law protections for healthcare workers. The indemnity clause in the CA 2020 addresses civil liability but leaves criminal liability unresolved. The doctrine of necessity, particularly in its broader form, may offer a principled defence in extreme circumstances.

However, any legal development must confront the ethical reality that prioritisation decisions shape how society values life. As emergency conditions subside, these questions will demand careful, honest examination.