Patients could sue the NHS if they catch Covid from unvaccinated staff this winter, a clinical negligence barrister has warned.
On Tuesday, Sajid Javid, the Health Secretary, announced that Covid jabs will become mandatory for NHS frontline staff – but the measure will not take effect until April.
On Wednesday, experts said NHS trusts could be open to negligence claims if patients caught the virus and suffered long-term harm after being treated by staff who had refused to be vaccinated.
Daniel Sokol, a clinical negligence barrister and expert in medical ethics, said hospitals that allowed unvaccinated staff to deliver care could be pursued for breaching a duty to take reasonable care of their patients.
The NHS has previously been sued for negligence over the spread of other infections including MRSA and C-difficile, though establishing the nature of the failure has proved difficult.
Mr Sokol said cases involving Covid could be more clear-cut given that patients coming in for planned surgery are expected to undergo tests before admission and the jab status of staff is recorded.
Earlier this week, The Telegraph revealed that more than 11,000 people have caught Covid and died after being admitted to NHS hospitals for other ailments.
Hospital cases lookup v2
The hospital data show that thousands of patients who went to be treated for other illnesses "probably" or "definitely" caught the virus during their stay in hospital and subsequently died.
Mr Sokol said the documenting of such cases could help patients make a legal challenge against the NHS if they suffered long-term harm as a result of Covid which was likely to have been caught from an unvaccinated staff member.
"The hospital has a duty to take reasonable care of patients. That includes doing what taking reasonable care to prevent infection from communicable diseases such as Covid," he said.
"And if they knowingly allow one of the frontline clinicians to care for patients without being vaccinated, that may constitute a breach of duty which could be actionable in negligence if a person suffers harm."
A patient might consider legal action if they took precautions such as taking a Covid test and self-isolating before admission only to catch the virus on a ward, resulting in long Covid, leaving them out of work and requiring their wife or husband to care for them, he suggested.
If it was found that one doctor or nurse on the ward was unvaccinated and they tested positive for Covid during regular NHS tests, the case could be made "on the balance of probabilities".
The barrister pointed out that current medical guidance says doctors have a duty to make the patient’s care their first concern, including to be "immunised against common serious communicable diseases". As a result, they could face disciplinary action from employers now or from the General Medical Council should the body choose to pursue it, he said.
It came as a YouGov poll of more than 3,000 people found almost four in five in favour of mandatory jabs for NHS staff.