As we take steps to come out of the Covid-19 pandemic the true impact the past year as had on NHS waiting lists and cancer treatment is becoming clearer. Concerns were raised during the last 12 months about non-Covid-19 patient care, in particular, in relation to cancer treatment.
It is estimated that, as at the end of March 2021, 304,555 fewer patients were given an urgent referral to hospital by their GP because of suspected cancer over a 12-month period, as compared to the previous year. Questions will be asked as to whether these delays were avoidable.
Amy Greaves, specialist clinical negligence solicitor in our Birmingham office, explains the difficulties that will need to be overcome to succeed in a claim:
“The NHS was under incredible pressure at the start (and during various points of the pandemic) and the decisions which had to be made by clinicians at the time were not easy. It may not sit comfortably with many to question those decisions. However, for patients who have had delayed treatment for cancer during the pandemic it is a personal tragedy. It is natural for them to look more carefully at those decisions that were made and consider if something different could and should have been done.”
Cancer patients diagnosed, undergoing, or about to undergo, treatment
For those who had already been diagnosed with cancer and were undergoing, or about to undergo, treatment, the National Institute for Health and Care Excellence (NICE) published rapid guidelines for delivery of systemic anticancer treatments. Advice was given to clinicians in deciding whether to continue with treatment and to have a discussion to consider if treatment was to start/continue.
The guidance was amended after publication to assist clinicians in prioritising anticancer treatment, with patients who had a more than 50% chance of success of cure with treatment to take top priority and non-curative treatment with intermediate (15-50%) chance of success prioritised last.
Cancer patients who had treatment delayed
For patients who had their treatment delayed, Defendant Trusts will, completely understandably, have a defence that strict guidelines were in place and those guidelines were followed. If a patient thinks the guidance was not applied to them correctly it may be possible to succeed in a claim, although there is likely to be a significant evidential burden for them to meet the legal test to establish negligence in these circumstances.
Cancer patients with symptoms but no diagnosis
For those patients who had symptoms, but not a diagnosis, the advice was the NHS remained open for serious conditions and illnesses. Guidance issued to GPs confirmed that face to face appointments should still be offered where required. Given this guidance, it is likely a claim will succeed if a patient contacted their GP with cancer symptoms and were not offered a face to face appointment or referred for appropriate investigations. For example, a breast lump is unlikely to be capable of assessment via a telephone consultation.
A number of screening programmes, including for bowel and cervical cancer were stopped in the early part of the pandemic. As this was blanket guidance it is unlikely that any claims will arise from delayed diagnosis due to inability to attend a screening appointment.
Restoration of full cancer services
By July 2020 guidance was issued from NHS England to restore full operation of all cancer services overseen by a national cancer delivery taskforce with the aim to reduce the number of patients waiting for diagnostics and/or treatment for more than 62 days and to ensure levels returned to pre-pandemic levels. Therefore, from this point onwards, the usual legal principles for considering a delayed cancer diagnosis will apply.
As with any delayed cancer diagnosis case, it will be necessary to show the earlier diagnosis (or treatment) would have altered the long-term outcome for the patient. This is always the biggest hurdle to overcome.