Patrick Mullarkey

There have been many vivid and disturbing images throughout the Covid-19 pandemic that have relayed the pain, suffering and heartache that families have had to endure with loved ones suffering long lasting illness and so many losing their lives prematurely. One memory that will linger is the queue of ambulances waiting to admit extremely ill patients, struggling to breathe with some fighting for their lives in hospitals across Northern Ireland in the last few weeks.

Indeed, with the exception of the heroism of the National Health Service saving countless lives in the most adverse of conditions and the present roll-out of vaccine, there has been little in the way of good news within the health service. One exception, however, was the incredible feat of the Belfast City Hospital Organ Transplant team, who back during the first lockdown announced that they had conducted 29 lifesaving transplants in less than three weeks, clearing almost a third of the waiting list. A beacon of hope and of life, in the darkest of days.

However, as a direct consequence of the pernicious upsurge of Covid cases, this surgery has now ground to halt and, as has been widely documented, so too has cancer screening with routine diagnostic work deferred and only urgent symptomatic cases prioritised for diagnostic intervention.

The Health Service in Northern Ireland now finds itself in an impossible position of choosing one life saving treatment over another, prioritising patients suffering with one type of disease as against those with another – a ticking timebomb which will be most acutely felt by the patients caught up in this crisis which, tragically, will have long term catastrophic consequences for some. With the possibility that the current lockdown restrictions could still be in place until Easter and easing only on a step-by-step basis, there is a potential for an influx of complaints directed at the health service relating to cancelled surgeries, treatment delays and growing waiting list times.

Macmillan, the Northern Ireland cancer charity, has warned that the pandemic has had a devastating impact on cancer services with the cancellation and delay of vital appointments, surgeries and treatments, alongside the reduction in people presenting with symptoms. Projections indicate a significant increase in adverse outcomes including avoidable deaths by reason of diagnostic and treatment delays due to the pandemic. A recent UK study predicted that for four common types of cancer (breast, bowel, lung, and oesophageal cancers), delays in diagnosis due to the Covid-19 pandemic will result in approximately 3,500 avoidable cancer deaths, equating to 60,000 years of life.

And of course, more generally, it is not only cancer cases being affected. Across all disciplines including hip surgery, hernias and back problems, waiting lists are increasing beyond the previous unacceptable levels.

The impact of all this is that delayed diagnosis and treatments equate to worse outcomes, including avoidable deaths in urgent cases. From a legal viewpoint, the denial of appropriate and reasonable care to patients in such circumstances is in breach of a health care providers duty to its patients.

Is it an answer to say that care was not provided because of the restrictions, in terms of available resources, imposed on public health authorities and clinicians due to the pandemic? That would mean it would be lawful to say we have failed a very large proportion of patients whose care has been demonstrably sub-standard, but they have no recourse in care or in law because there are no funds or resources available.

The impact that we have already seen in delayed diagnosis and care will, in the very near future, see a significant rise in the numbers of patients presenting with complaints of a lack of care. In general, when the Courts come to assess such cases it does so by the standard required of the reasonable doctor or hospital, not by reference to the available resources. It is the assessment that matters, not the circumstances of the health service.

All of this raises important issues of the negligence liability of public authorities which will be severely tested in the months and years ahead and while we all long to condemn this awful disease to the annals of history its divisive strains will be felt in boardrooms and courtrooms for some time to come.

• Patrick Mullarkey is a partner and joint head of healthcare at O’Reilly Stewart Solicitors. He also chairs the Law Society of Northern Ireland’s Clinical Negligence Practitioners’ Group.