Analysis by the Health Foundation UK has shown that there were approximately 4.7 million fewer patients referred for routine hospital care between January and August 2020 compared with the same period last year. This highlights the likely scale of the backlog of routine care needs (incorporating elective and routine hospital care, such as hip, knee and cataract surgeries) since the onset of the Covid-19 pandemic.

To comply with the NHS Constitution guidelines the maximum waiting time for routine consultant-led care should be no more than 18 weeks. However, of the 4.2 million people currently waiting for routine elective care, 2.3 million have already waited longer than 18 weeks. This reveals a  concerning level of unmet patient needs which will be challenging for the NHS to recover from.

The Impact of COVID-19 on NHS treatment

The BMA reports that new data released by NHS England also casts light on the cumulative impact the current pandemic has had on NHS services in England.

In order to ensure the NHS was able to cope with the large influx of Covid-19 patients this year many NHS Trusts were required to cancel planned operations, discharge large numbers of patients into the community and conduct GP consultations remotely. The data also suggests that there has been a drop in GP referrals (presumably because patients are not attending) which could also impact on the level of future  demand for healthcare.  

Added to all of this the research suggests that there are concerns that in the haste to ensure that NHS services return to “near-normal” levels for elective and outpatient care, doctors are being  given unrealistic targets with the latest figures showing that most services are failing to hit them. This could have the effect of compounding the pressures on the clinical staff responsible to providing the services and potentially result in financial penalties from the Government for not meeting these targets.  It is not yet known to what extent front-line healthcare professionals have been effected psychologically as a result of the pandemic, but added pressure in terms of targets and dealing with a heavy backlog could have a detrimental effect on health and well-being. 

How could this affect future claims

The concern is that the referral backlog will inevitably result in delayed diagnosis and treatment and that this will have a knock on effect an already stretched healthcare system. It is not yet clear how the Courts will modify the legal duty of care test to reflect these unprecedented times.    It can be hoped that the courts will adopt a sympathetic approach to the impact of the Covid-19 emergency on referral and treatment times. Accordingly, there is scope for the number of delayed diagnosis and delayed transfer of care claims to increase and a concern that errors will creep into clinical practice as staff try to cope with the effects of pent-up demand. It seems likely whilst the immediate grip of the pandemic loosens over the coming months/years its legacy in terms of the overall impact on our healthcare system and front-line staff will be felt for many years to come.


This article was co-written by Mark Amphlett, Associate, Michelle Blackwell, Paralegal and Nicola Pegg, Partner.

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