NHS strikes – good or bad for patient safety and clinical negligence cases?

Written by Veronique Odey, Assistant Litigation Executive – Medical Negligence 

It is already well known that the NHS have struggled with recruitment. Following the covid-19 pandemic, health care staff have been stretched pretty thin, with the NHS still trying to clear the backlog created by the pandemic. 

Concerns for patient safety

The junior doctors, nurses and healthcare unions have rejected the government’s most recent pay offer, which means the strike action has not yet come to an end. As it stands, there is no way to predict when this strike action will resolve and the longer it continues, the more concerns are raised about patient safety. 

Not all NHS trusts and health boards have been eligible for strike action by the nurses. This decision was made by a vote. The vote must result in over 50% of the nurses who work in that trust agreeing to strike. There are some trusts that did not reach this standard and there are some areas like Wales where every health board except one voted in a majority to perform the strike. Therefore, not all areas will have the same impact of not having nursing staff present at their hospital.[1] 

More than 196,000 hospital appointments cancelled 

More than 196,000 hospital appointments have had to be cancelled because of the junior doctor strikes in England as of 17th April 2023.  It has been noted that there are serious concerns about patient safety during these strikes. Nonetheless, many studies have shown that patient mortality has not been affected.[2]

As a true scale of the disruption, some hospitals reported that they are not carrying out up to half of their planned work in order that consultants can be redeployed to emergency care to cover for the striking junior doctors. By its very nature strikes are meant to be disruptive, which is clearly seen by the impact it has on the day-to-day running and activity in a hospital. 

The healthcare professionals have tried to perform the strikes in a way that keeps patients safe, as an agreement has been reached where emergency services and care will not be affected. But are we sure this will not influence patients and potential clinical negligence claims in the future?[3] 

At-risk patients face long waiting lists 

Although emergency pathways are largely protected by redeployment of colleagues, other activities cannot be done. These are elective investigations, procedures and operations, some of which are clinically urgent. Patients are left on waiting lists, and a small proportion of those will deteriorate. The most at-risk groups are those with cardiovascular disorders that can destabilise at any moment (coronary artery or valvular disease), and those with cancer whose tumours might advance or metastasise over several weeks of delay. Given that there are tens of thousands of patients with these conditions, it is likely that some will suffer complications, and some may even die.[4]

NHS national medical director Professor Sir Stephen Powis said that “Today’s figures lay bare the colossal impact of industrial action on planned care in the NHS. Each of the appointments postponed has an impact on the lives of individuals and their families and creates further pressure on services and on a tired workforce and this is likely to be an underestimate of the impact as some areas provisionally avoided scheduling appointments for these strike days.”[5]

Impact on clinical negligence cases 

It is a well-known fact the NHS is significantly understaffed and with the number of clinical negligence cases that have been brought it is reasonable to assume that in the future this will likely be affected, particularly in instances where treatment is postponed, and medical complications ensue as a result. 

However, a successful medical negligence claim is a high hurdle to clear and relies on a reasonable body of medical opinion confirming that the course of action taken was inappropriate and that they would not have pursued a similar course of action. It is likely that these experts consulted will also be experiencing this new challenge in their day-to-day work duties, so it will be interesting to see the outcome of such a case in the future. Whether this could be a basis for which a claim is made remains to be seen. 

1. https://www.bbc.co.uk/news/health-63561317

2. https://www.bbc.co.uk/news/health-65305035

3. https://www.bbc.co.uk/news/health-65305035

4. https://blogs.bmj.com/medical-ethics/2023/04/26/is-it-ethical-for-nurses-and-junior-doctors-to-strike/

5. https://www.bbc.co.uk/news/health-65305035

About Veronique Odey 

Veronique graduated from UCLan in 2017 with a First Class Honours Degree in Law, before completing a Masters Degree in Healthcare Ethics and the Law from University of Manchester the following year. Veronique also completed the Legal Practice Course (LPC).  

Veronique began her legal career in conveyancing and private client, before choosing to move into medical negligence; Veronique’s interest in medical law is due in part to both her parents working in the NHS. Outside of work, Veronique is a member of a drama society where she enjoys taking part in musical productions.