The PPE conundrum by Danna Quinto, Head of Litigation and Family Services/Partner of Deo Volente LLP

I am an immigrant, a transplant from the Philippines circa 13  years ago. Most, if not all, Filipino people of my age that I know of and am close with who live in the UK are nurses or health care workers. This includes my best friend of 23 years and many childhood friends. Most of my Filipino clients are nurses too

So this blog is more than another legal summary. This hits close to home. Tall of the health care workers - thank god for you. May the law do you justice; may it protect you whilst you do your job. If it falls short, may moral duty urge someone to do something urgently to fix that?  

Some would argue that we do not send warriors to war with a makeshift bulletproof vest and half a rifle. Some would also point out that the warriors we sent to traditional battlefields had consented to enter a career laden with risks of having to give up their lives - did our health care workers accept  the same level of risk by entering their profession?  
It is a complicated, unprecedented, and evolving situation -  I know, we know. However, I also know that a frontline client fears she will not see the end of her settlement negotiations as she witnessed nurse friends being rolled to the ICU. I have also been asked for the nth time by the nth frontline of a thing or two about drafting their wills. There is an air of perishability floating with the spring pollens. 

It has been widely reported that there is a gap in the healthcare workers (HCW) supply of Personal Protective Equipment during the COVID-19 pandemic fight. One news article noted “repetition of PPE” by HCWsanother reported supply levels as “critically low”. 

Even the Royal College of Nursing noted their disappointment and avered on their website, “On behalf of our members, we have voiced our disappointment over the length of time it has taken to develop this guidance and includes nursing as an equal stakeholder alongside medical professional organisations. Employers must adhere to this guidance to regain the confidence of the nursing workforce. “ 

The Guardian asked last weekend raised this query: “Was the UK as prepared as it should have been for coronavirus, including holding the appropriate levels of the right PPE equipment?”. The article then acknowledges the need for a practical debate rather than an academic  one. It then made a conjecture that logistics is the problem. 

Could logistics mean Section 8 of the Personal Protective Equipment (PPE) Regulations 2002, where no person responsible shall place on the market any PPE unless the requirements enumerated as subsection 2 have been complied with in relation thereto? This practically means another layer of gatekeeping (justified to an extent, some quarters would argue) before we can get necessary supplies delivered to the frontliners.
However, the Royal College of Nursing avers in their website, “The RCN is clear that health care workers must not accept any PPE hand made donations. Your employer will provide you with high standard personal protective equipment meeting health and safety standards.” 
The Personal Protective Equipment Regulations was enacted in 2002, eighteen years before the COVID-19 pandemic. Was the apocalyptic effect of the pandemic on the supply chain foreseeable then?  Quite probably - several contagion films had arguably thought of it (pre and post-2002) 

Was the UK stockpile of PPE kept at a level with sufficient consideration as to the “Section 8 effect” during an apocalyptic supply market? 

The standard of care is the same for employers of HCWs, whether they are NHS or private - it is the employer’s duty to keep a reasonably safe environment for its employees, to ensure that employees are trained and equipped to face the risk and hazards of their role. 
If an HCW is worried or concerned about their situation or their PPE, s/he must raise it with the employer, and it would be most prudent to do so in writing. The Royal College of Nursing, for example, published their own request to the government for clarity and assurances on their website. 
“On behalf of its members and in the interests of public safety, the Royal College of Nursing is seeking urgent clarity and assurances from government and health authorities across the UK that there will be: 
Priority Covid-19 testing for all health care professionals. 
  • Access to adequate supplies of personal protective equipment and hand sanitiser for all nursing, midwifery, social care and student nurse staff for use at the point of care. 
  • Full occupational sick pay paid from day 1 for all our members, with no detriment, regardless of where they work. 
  • Provision from government and employers to ensure all nursing staff can care for their children without losing income. 
  • Clarity on the measures taken to protect pregnant and vulnerable nursing staff. 
  • Stringent measures in place to ensure the health, safety and wellbeing of staff by addressing fatigue, hydration and issues of abuse towards staff.” 
However, there is a far pressing issue than a titillating legal conundrum. 
The problem is clear - our HCWs need PPE stat. 
The sooner we solve the logistic issues, the better, whether it is a bureaucratic checkpoint holding it up or the apocalyptic disruption of the supply chain. Get on with it. 
Crisis calls for creative, swift, and bold answers - I have seen countries with no luxury of comprehensive health and safety regulations surviving the crisis by encouraging ingenuity of their people - I have seen the internet laced with news about handmade visors from acetate, gowns made by local seamstress in different colours to lift the spirits, and ski goggles donned by HCWs as an alternative face protection equipment. 
Nonetheless, we also know that hasty and incomplete solutions can be dangerous. 
If our HCWs used non-prescribed and donated PPE as a result of the shortage of prescribed  PPE and ended up being severely stricken by COVID-19, would this be seen as contributory negligent if they are to mount a personal injury claim? How will we argue causation? How can we prove causation?
There are a lot of questions. I understand the government are “triaging” issues  that they need to deal with. It is hoped that the RCN and all HCWs receive answers and assurances they deserve and that HCWs shall not be put in a position where they need to contemplate choosing to break their contractual obligation to keep themselves safe.
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DV Solicitors
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By: DV Solicitors
Date: April 16, 2020

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