Healthcare workers with Long Covid: Group litigation – a blog from David Osborn

Summary

In December 2022, a newly formed group called 'Long Covid Doctors for Action' (LCD4A) conducted a survey to establish the impact of Long Covid on doctors. When the British Medical Association published the results of the survey, the findings were both astonishing and saddening in equal measure.[1] The LCD4A have now decided that enough is enough and that it is now time to stand up and take positive action. They have initiated a group litigation against those who failed to exercise the ‘duty of care’ that they owed to healthcare workers across the UK during the pandemic. 

In this blog, I summarise how and why I feel our healthcare workers have been let down by our government and why, if you are one of these healthcare workers whose life has been effected by Long Covid, I urge you to join the group litigation initiative.

Content

In April 2023, a blog published on the hub revealed the widespread under‑reporting of healthcare workers (HCWs) who had contracted Covid-19 through occupational exposure to SARS-CoV-2, despite this being a legal requirement under the ‘RIDDOR’ regulations.[2]

On the face of it, this seemed to have all the hallmarks of collusion between the UK Government’s Health Authorities and the Health and Safety Executive (HSE), which is responsible for ensuring that health and safety legislation (including RIDDOR) is properly implemented by all employers (including healthcare), and 82% of NHS Trusts and Health Boards failed to make even one single RIDDOR report.

Taking action

 LCD4A have now decided that enough is enough – where words and letters have failed, it is now time to stand up and take positive action. They have taken a giant leap forward by initiating group litigation (a 'class action') against those who failed to exercise the ‘duty of care’ that they owed to healthcare workers across the UK. Crucially, this action to achieve justice and expose their negligence is not just for doctors, but for all NHS healthcare workers who contracted the disease on the ‘Covid front line’ and have been significantly injured as a result.

If you are one of the thousands of ‘healthcare heroes’ whose lives have been blighted with the effects of Long Covid then the nation is indebted to you for your selfless bravery and service. You thoroughly deserve redress for the damage caused to your health, your career and any financial detriment you are suffering as a result.

It is a fundamental right of any person in the UK to seek reparation for wrong that has been done to them (known as a ‘tort’ in legal terms) in the civil courts. Wrong has certainly been done to you, so don’t hesitate to exercise your rights if this situation applies to you and click here and join the group litigation. Should you have any doubts as to whether this is the right thing to do, the following information may help inform your decision.

Transmission of the disease

Early in the pandemic it was well known that coronaviruses such as those which caused SARS and MERS were airborne; i.e., transmissible by tiny droplets known as aerosols. There was no reason whatsoever to presume that Covid-19 would be any different and no credible evidence has ever been presented to that effect.  

Evidence disclosed during the ongoing UK Covid-19 Inquiry has revealed that, as far back as January/February 2020, key scientists within UK Government knew very well that the disease was airborne. Accordingly ‘airborne precautions’ were recommended for healthcare workers, meaning that effective respiratory protective equipment (RPE) such as FFP3 respirators should be used.

However, as the pandemic spread across the world, the World Health Organization (WHO) began to vehemently deny any suggestion that Covid-19 was airborne. This was in the face of a storm of concern by some of the world’s foremost experts, including some of the most well-respected bioaerosol scientists in the world. However, WHO elected to ignore their representations.

One may wonder why this organisation would dismiss the evidence from acknowledged experts when the fate of millions of people (and particularly healthcare workers) was at stake.

By this time the UK and US governments knew that their stocks of RPE, manufacturing and procurement arrangements would be insufficient to equip their HCWs with the ‘airborne precautions’ needed to keep them safe. Any WHO designation of the pandemic disease as ‘airborne’ would undoubtedly cause problems in respect of healthcare workers’ reaction to being provided with lesser protection such as surgical masks. The extent to which WHO may have acquiesced to any influences brought to bear by member nations may never be known. 

In 2020 there unfolded what can only be described as one of the most bizarre self‑contradictions in the history of mankind! On the one hand, we had UK Government public information broadcasts vividly depicting airborne transmission of the virus with it floating in the air, wafting from person to person. But on the other hand, HCWs were being told that the disease was not airborne, but spread by droplets that rapidly fall to the ground and will only infect you if they happen by chance to land on your nose, mouth or eyes.

This left doctors, nurses and everyone else extremely puzzled as to how the virus could be ‘airborne’ in someone’s home, endangering health while just chatting quietly with friends, whereas in a hospital ward or care home, with infectious patients coughing profusely and exhaling virus-containing aerosols with every breath they take, it was ‘not airborne’. This remarkable change in the virus’s properties twixt home and healthcare workplace has never been explained. Hopefully as we move towards module 3 of the UK Public Covid-19 Inquiry they will be required to explain themselves.

The government advert on the right, correctly illustrates how the virus-containing aerosols are more concentrated nearest to the source of emission, before dispersing around the room. This helps you to envisage how HCWs providing direct, close-contact care are exposed to the greatest concentrations of airborne virus. Normal ventilation and air-conditioning systems do not create sufficient air movement to disperse this localised plume of aerosol hanging in the air near to a person’s face, particularly if they are prone in bed or seated. This of course penetrates or bypasses the flimsy, loose-fitting surgical mask and enters the HCW’s mouth and nose where the virus can implant itself into the epithelial cells prior to spreading to the brain and the rest of the body.

The wrong personal protective equipment (PPE)

In the health and safety profession we are always taught that one of the most dangerous things you can ever do is to provide the wrong PPE for the hazard involved. That is because it lulls the wearer into a false sense of security. It causes them to believe they are protected and safe when in fact they are neither protected nor safe. If the hazard is undetectable by sight, smell, taste or any other sense (as is the case with aerosols containing the SARS‑CoV‑2 virus), then this renders the wearer highly vulnerable since the virus has free passage into the body. They will not even know that this has happened until the disease manifests itself in some way.

The poster below shows how the Government unequivocally told HCWs that fluid resistant surgical masks (FRSMs) were “Safe PPE”. That was untrue. They were neither 'safe' in terms of protecting HCWs from inhaling airborne virus, nor were they actually PPE.

Despite the widespread misuse of the term PPE by Government, NHS and the media, surgical masks are not and never have been classified as personal protective equipment by the regulatory and enforcement authority HSE, as shown on their website. 

At the same time, the UK Covid-19 Infection Prevention and Control (IPC) Cell for the NHS across the four nations was producing guidance, which mandated FRSMs for direct, close-quarter care of suspected or confirmed cases of Covid-19. Had they been less single-focused on their FRSM dogma and taken the trouble to consult their supplier NHS Procurement’s website, they would have found a very competent and comprehensive explanation of the different types of masks and respirators. This was displayed online from 29 April 2020 right through until 2022. Unlike the IPC guidance, it correctly stated that all types of surgical masks (including type IIR, FRSMs) “are for use in protecting others from the wearer transmitting infection” and “are not effective at protecting the wearer from airborne diseases such as coronavirus”.

Out of date RPE

When the availability of masks and respirators became critical in the early months of 2020 and withdrawals were made from the PPE stockpile, it was realised that much of it was way past its expiry date. The manufacturers’ expiration date had been over-labelled with future dates. You may recall being reassured by Government officials that “stringent tests” had been carried out to ensure they were safe for use. These tests were organised by Public Health England together with the NHS Supply Chain. Evidence has been obtained that these “stringent tests” were not, in fact, “stringent” at all. HCWs were misled in this respect.

The UK Health Security Agency has refused Freedom of Information requests for the laboratory certification of these out-of-date RPE/masks. The HSE has not responded to a Freedom of Information request for their correspondence with Public Health England setting out the laboratory testing required to confirm that the equipment was still compliant with the relevant safety standard BS EN 149:2001.

Inspection of the one laboratory report that has been obtained revealed that critical “total inward leakage tests” had not been carried out to test the seals of the FFP3s. This was despite manufacturers’ warnings that the materials from which these are made degrade with time. It is one of the most important features of a respirator that it must not leak contaminated air inwards, either when it is donned or for the duration of time for which it is worn, because it is unlikely that the wearer will become aware of any leak. Another important factor is the integrity and elasticity of the straps, which also degrade with time. Any deterioration of the straps while in use can reduce the inward pressure with which the respirator seal is held to the face and, again, cause inward leakage. The laboratory was unable to evaluate the 'in‑use' factors and advised the NHS Supply Chain that they should seek certification of this from the manufacturers instead. There is no evidence that this was done.

 As mentioned previously, this whole situation arose from the 'non-airborne' fallacy. However, this could not survive forever against the wealth of evidence supporting airborne transmission and the dearth of evidence supporting their peculiar notion of ‘droplets’ being the main factor driving disease transmission. Besides, with a disproportionately large number of HCWs contracting Covid-19 and thousands of patients dying of hospital-acquired infection, it was patently obvious that their infection‑control measures were ineffective and that their guidance was flawed.

The World Health Organization apologises

During the autumn of 2022, two WHO’s top scientific officials admitted that their denial of airborne transmission had been a huge mistake:

Soumya Swaminathan (WHO Chief Scientist, retired November 2022) said: “We should have acknowledged aerosol transmission much earlier, based on the available evidence.         

“We were not forcefully saying ‘This is an airborne virus’. I regret we didn’t do this much much earlier”.[3]

And Jeremy Farrar (Swaminathan's successor as WHO Chief Scientist), when interviewed by a German news site and asked: "But even the World Health Organization didn't take the spread via aerosols seriously and didn’t issue a warning about it until the autumn of 2020...", replied: "Yes, you are right, that was a very big mistake. We could have prepared better if bigger decisions would have been made around aerosols, around face masks, around the best treatment options, personal protective equipment for nurses, doctors, about the capacity for intensive care units. That would have saved an enormous number of lives".[4]

While these admissions and apologies are somewhat gratifying to all of us who knew that WHO were wrong all along, they must be a bitter pill to swallow for HCWs who were on the Covid frontline and who have been harmed by their entrenched ‘anti-airborne’ narrative.

But not the UK

One might reasonably have expected some sort of similar apology from key individuals in the British health authorities who proliferated the anti-airborne doctrine in the UK, entrenching it firmly into the four-nations IPC guidance and taking away respiratory protection on 13 March 2020. But no – not a word of apology! Perhaps too many personal reputations at stake to 'do the right thing'?

Most galling of all is that, in the midst of the second wave, Public Health England were recommending to members of the IPC Cell that FFP3 respirators should be worn in all medium-to-high risk pathways (irrespective of aerosol generating procedures) due to the increased risk of airborne transmission. However, there was a feeling amongst Cell members that if they were to change tack and move towards wider use of FFP3 respirators, HCWs might think that they hadn’t been properly protected by their previous FRSM guidance. So, despite the fact that Public Health England were the Government-designated 'lead authority', the IPC Cell had the effrontery to ride rough-shod over their recommendations. While many of those responsible for the IPC guidance now proudly hold national honours for their services to healthcare during Covid-19, HCWs are left counting the cost with shattered lives and dreams.

Those who sought to have Covid-19 recognised as 'occupational exposure' and reported under the RIDDOR health and safety regulations were adamantly denied. When some health Trusts/Boards attempted to report cases they genuinely considered were occupational exposure, the HSE pushed back and refused to accept them. Under the regulations it is the employer’s “responsible person” who decides whether or not to report. It is not the HSE’s decision and there is no provision within the regulations for them to reject reports or instruct duty-holders not to report.

It is now known that this followed 'behind closed doors' discussions about RIDDOR-reporting that took place between the HSE and the Department of Health and Social Care. The Chief Executive of HSE has refused to reveal what was discussed in those covert discussions. In justifying her reason for refusing to disclose this information (even to Members of Parliament), she cited “legal privilege”.

 “Legal privilege” is something that organisations can hide behind when their lawyers anticipate that they may need to defend against personal injury claims (for instance, healthcare workers claiming for injury through occupational exposure to a highly dangerous virus, left unprotected by failures in PPE policy and provision).

Readers will remember those dark days in 2020, when millions of UK citizens stood at their doorsteps clapping for carers, ringing bells and painting rainbows in their windows. In sharp contrast it seems that civil servants and lawyers were actively discussing means of suppressing statutory requirements for recording employees’ occupational exposure to the virus and thereby thwarting their route to compensation. In time this may come to be viewed as an “affront to justice”, not dissimilar to that which was highlighted in the recent BBC drama concerning the Post Office scandal.

We need to keep firmly in mind that health and safety legislation (including RIDDOR) has been put in place by the will of Parliament for the benefit of workers, not for the benefit of the HSE nor Government departments who have no legal or moral authority to override or annul statutes of Parliament.

Conclusion

If you had doubts about whether to join the group litigation initiative, I hope you will now have a better idea about the ’rights and wrongs’ of the situation and be able to reach a decision.

All NHS healthcare workers who have caught Covid-19 at work and suffered injury as a result are invited to join the group litigation. For clarity, this action is open to all healthcare workers in all four nations. Those interested to join are encouraged to contact the relevant firm in a timely manner. The firm will help assess the legal merits of your case. Cases are being run on a ‘no win, no fee basis’.

Once again, if you want to take a step towards the justice you so deserve click here to see LCD4A details of the scheme.

References

1. BMA. First major survey of doctors with Long Covid reveals debilitating impact on health, life and work. British Medical Association, 4 July 2023.
2. David Osborn. "Forgotten heroes" – the sequel: a blog and resources from David Osborn. Patient Safety Learning, 19 April 2023.
3. Noyce E. World Health Organisation chief admits key error it made at start of Covid outbreak. The Independent, 24 November 2022.
4. von Bredow R, Hackenbroch V. “I Fear We Are at the Beginning of an Era of Pandemics”. SPIEGEL International, 26 October 2022.

About the Author

David Osborn is a chartered occupational safety and health practitioner, having been in practice for 30 years. He has a background in biochemistry, microbiology, epidemiology and emergency planning.

David is a member of the Executive Team of CATA (the Covid Airborne Transmission Alliance) which is a consortium of professional and scientific bodies in the health sector representing over 65,000 healthcare professionals. CATA is campaigning for change to IPC Guidance in order to properly protect healthcare workers from airborne respiratory diseases and it is also a core participant in the UK Covid-19 Inquiry.

Any blogs or letters that David writes to Government departments, Agencies or the NHS are written entirely on a personal and individual basis and do not necessarily reflect the views of any organisations to which he is affiliated.