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Delays in cancer diagnosis due to Covid-19 pandemic: a legal minefield?

Posted: 06/04/2022

A recent study in the United Kingdom demonstrated that there is likely to be a 20% increase in cancer-related deaths over the next 12 months because of the effect of the pandemic on health systems. Elise Bevan, a partner in the clinical negligence team and member of the oncology specialist group, provides insight on whether such delays are likely to lead to significant numbers of patients bringing claims.

There has been noteworthy concern about the impact of the Covid-19 pandemic on essential health services, including the management of cancer. A review published in the JCO Global Oncology found that the availability and maintenance of cancer services appeared to be substantially affected by the pandemic. The Lancet Oncology referenced that Covid-19 has had devastating effects on patients with cancer, with huge numbers of missed diagnoses and delayed treatments due to health systems under pressure and patient reluctance to seek medical care. 

During an inquest at the end of last year, it was revealed to the court that a referral, which pre-Covid had a waiting time of approximately 2.5 months for an outpatient appointment, now involves a waiting time of around eight months. A survey conducted by Cancer Research UK found that almost 3 in 10 cancer patients had their treatment disrupted when the NHS suspended much of its normal care to focus on Covid-19. Michelle Mitchell, Cancer Research UK’s chief executive, said: “Now for the first time in decades we’re faced with the fact that cancer survival could go backwards.”

GP referrals for suspected cancer decreased sharply during the first wave of the pandemic, following a considerable fall in the number of GP appointments. While approximately two thirds of cancers are diagnosed following a GP referral, patients may also be referred for suspected cancer via a national screening service. Breast and bowel screening services were paused locally in England in March 2020, and invitations for cervical screening were suspended in April 2020. It is believed that three million fewer people were invited for screening during the pandemic than would have been expected and it is estimated that 45,000 people missed receiving a cancer diagnosis during the past two years.

The number of patients starting treatment following referral from a screening service fell sharply. To maintain cancer treatment during the pandemic, ‘Covid-free hubs’ were established and treatments were delivered which have less impact on the immune system or require fewer hospital visits. However, the total number of first treatments for cancer fell sharply in April and May 2020.

Guidance issued in 2021 aimed to fully restore service, including meeting the increased levels of referrals and treatment required to address the fall in the number of first treatments by March 2022. However, the Department of Health said it recognised "business as usual is not enough" and whilst it is developing a new 10-year cancer plan, there are warnings that 340,000 people could miss out on an early cancer diagnosis over the course of the next five years.

The fall in referrals is worrying as this suggests there are people with potential cancer symptoms who are not yet known to services. For example, concerns have been raised about symptoms of lung cancer being mistaken for Covid-19. 

Leading cancer doctors are understandably concerned that all of this is going to lead to patients bringing claims. Professor Gary Middleton, a cancer surgeon in the West Midlands, said: “We don’t know the scale yet. But I think the likelihood is enormously high that potentially we’re sitting on a legal minefield with this. I think there’s going to be a huge amount of this.”

Much has been written over the last 12 months about the effects of Covid-19 and the impact of the government’s response to it upon cancer sufferers. It is unavoidable that many patients’ conditions have worsened due to delayed treatment and cancellations, leading to complications and the need for further, more invasive treatment. In some cases, it is likely that patient’s lives have been put at risk. 

So great has the concern been over the potential cost to the NHS of an influx of Covid related legal claims that the Medical Defence Union called in 2020 for a public debate over the need for legal immunity for medics from claims arising in relation to care during the pandemic. On 25 March 2020, the Coronavirus Act 2020 became law. Section 11 provides indemnity for the clinical negligence liabilities of healthcare professionals and others arising out of NHS activities undertaken during the coronavirus outbreak, and has been supplemented by a new NHS Resolution scheme.

From our perspective, due to complexities and difficulties, there is not necessarily going to be the deluge of legal claims that is feared. For example, there can be no legal claim for delayed diagnosis flowing from cases in which patients, frightened of contracting Covid, did not seek medical attention for suspicious symptoms which ultimately prove to have been due to cancer. 

It is highly doubtful that any claim lies in respect of the decision to suspend bowel, breast and cervical screening services and there is no question of a clinical negligence claim being made purely on the basis of a delay in a diagnostic test caused by the effects of Covid. The courts are highly likely to have some real sympathy for defences founded upon the stretched resources and unprecedented circumstances occasioned by the pandemic when assessing breach of duty in cancer, and other claims dealt with during the pandemic.

One area where we may see litigation is in respect of delays in diagnosis of lung cancer. A significant problem which has been identified is that the symptoms of Covid are in some ways similar to the symptoms of lung cancer, with a persistent cough being high on the list. Although a claim on this basis may be hard to make good, GPs do still have a duty in Covid times to ensure that an accurate history is taken and to consider all relevant differential diagnoses.

When considering the prospect of a successful claim in respect of delays in accessing treatment, the Rapid Guidelines for the Delivery of Systemic Anti-Cancer Treatments and for Radiotherapy, published by NICE in March 2020, and later updated in February 2021, will need to be considered. Those guidelines make provisions for minimising face to face contact, communicating with patients, discussing their individual risk factors for becoming severely ill with Covid, and of the risks and benefits of starting, continuing or deferring treatment.

However, the nub of the guidance is in the form of prioritisation tables for deciding when to give or continue treatment. The guidance requires a shared decision to be made with the patient. Any challenge to the guidelines themselves is likely to be fraught with difficulty and would not realistically be achievable through the normal clinical negligence litigation routes. However, that leaves open the very real potential for challenges to be brought upon the basis of incorrect application of those guidelines, with the greatest prospects of success most likely to be reserved for those patients who were or should have been considered high priority with the best chances of cure. Practitioners will need to consider whether the patient was correctly ranked within the table. The greater difficulty anticipated is likely to be in establishing how quickly the patient would have been seen, diagnosed and ultimately treated had early referral taken place.

Ultimately just how successful these claims will be, and indeed how well and how quickly the UK manages to make up lost ground in cancer referrals and treatment, remains to be seen.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority.

Penningtons Manches Cooper LLP