At a coronavirus briefing on 28 October 2020, the First Minister quoted directly from a Public Health Scotland report published that day on ‘Discharges from NHS Scotland Hospitals to Care Homes between 1 March and 31 May 2020‘ (link here), saying “The analysis does not find statistical evidence that hospital discharges of any kind were associated with care home outbreaks.”
The report found that:
- Between 1 March and 21 April there were 3,599 discharges from hospital to a care home. The majority (81.9%) of those discharged during this period were not tested for COVID-19 (C-19). Of the 650 who were tested, 78 had a positive result.
- Between 22 April and 31 May there were 1,605 discharges from hospital to a care home. The majority (93%) of those discharged during this period were tested for C-19. Of those, 1,215 tested negative and 278 positive. Of those who tested positive, 233 has a later negative test result before discharge.
The report concluded that:
- The best estimate of risk is a 27% increase in the case of an untested discharge compared to no discharge.
- The best estimate of risk is a 45% increase where the last test was positive.
- Overall, the risk of an outbreak associated with care home size is much larger than any plausible risk from hospital discharge.
When the law is asked to rule on causation, it tends to focus on the particular risk identified and traditionally applies a “but for” test by asking whether, on the balance of probabilities (more likely than not), a particular outcome would have been reached regardless of a particular event. If the answer is no then causation is established.
In industrial disease claims arising from exposure to known hazardous materials, the law evolved to apply lower tests than the “but for” one for causation, first by developing a “material contribution” test and then a “material increase in risk” test, each of which could suffice in appropriate cases to meet the test for establishing legal causation. Crucially, though, application of either of these lower tests requires the claimant first to establish, on the balance of probabilities, that he or she was, in fact, negligently exposed to a hazardous material. Negligence requires a breach of a duty to take reasonable care. Exposure requires proof as a matter of fact and on the balance of probabilities. In the case of exposure to coronavirus pathogens, not all exposure may necessarily be negligent exposure.
It remains to be seen whether a Scottish court will be asked to rule on causation in a C-19 care home context and, if so, which formulation of the tests for causation will be applied and whether the chosen test will be held to be met in any particular case.
Greg MacDougall, Partner and Solicitor Advocate