As with any business, clubs will wish to ensure that those who work for them, whether on or off the pitch, are in the best possible health and adhering to all legal and regulatory requirements.
This has been thrown into sharp focus by the COVID-19 pandemic, with the role of healthcare staff within football assuming greater importance.
The issues arising from the pandemic are far-reaching for those charged with looking after players, whether they be doctors, physiotherapists, dietitians or other allied health professionals. Here we explore some of the issues that COVID-19 may cause for your healthcare professionals and also the liabilities and risks that may arise for your club as you try to return to a more normal footing.
Duties of healthcare professionals working within a football club environment
A fundamental point to note at the outset is that the duty of any healthcare professional will always be first and foremost to their patient, not to those who employ them, and this has not changed in the current crisis.
Healthcare professionals are those individuals who are registered with one of the nine UK healthcare regulators, most notably for clubs:
- General Medical Council (for doctors).
- Health and Care Professions Council (for physiotherapists).
A member of the public, a player, or anyone else for that matter can complain to the healthcare regulators about a healthcare professional and the professional can then be investigated if the complaint meets the regulators' minimum thresholds (which are low).
In light of COVID-19 the regulators have issued a joint statement recognising that "in highly challenging circumstances, professionals may need to depart from established procedures in order to care for patients". At the same time, the regulators have reminded registrants of their obligation to "work cooperatively with colleagues to keep people safe, to practise in line with the best available evidence, and to recognise and work within the limits of their competence".
Unlike football, healthcare professionals are not fined, but the regulators can impose restrictions on how an individual can work, suspend them, or, in the most serious cases, strike them off the register so they can no longer work in their chosen profession. That might well cause operational difficulties for your club, particularly one with a longstanding and trusted relationship with its medical personnel.
Ultimately, the message is that healthcare staff working within a club setting need to adhere strictly to the guidance laid down by Public Health England and their regulatory bodies (including the Premier League and EFL) in relation to COVID-19. This is separate to the duty that your club has to act in accordance with the Medical Regulations laid down in the FA Handbook.
COVID-19 Testing Kits
The issue of both diagnostic and antibody testing is complex. We have been advising some of the UK's largest pharmacy chains in relation to this issue and clubs may well wish to take legal advice on any system of testing they wish to implement.
If you are considering implementing testing, there are certain things to think about:
When purchasing testing kits, there are broadly two types:
- Diagnostic - tests that show if an individual has COVID-19.
- Antibody - tests that show if an individual has already had COVID-19.
If your club wishes to develop your own testing regime by funding private diagnostic or antibody tests, there are several important issues to consider before going down this route, for example:
- Certain tests may not actually be legal. A number of healthcare professionals have been arrested under the Fraud Act for sale of non-CE-marked diagnostic kits. Clubs must ensure that any kit provided has at the very least a "CE" or quality assurance mark. At the date of writing, no diagnostic swab test that the individual completes entirely at home has been granted a CE mark.
- Certain home diagnostic kits have been granted CE marks, but those are ones where, although the sample is taken at home, it then goes to a laboratory for analysis.
- In relation to antibody tests, although several have received CE marks, no at-home antibody tests have received CE marks at the date of writing. Arguably more important, there is no scientific consensus yet as to what degree or duration of immunity (if any) is conferred by previous COVID-19 infection.
Many medical negligence claims arise due to test results not being appropriately interpreted or followed up. An essential element of any policy on COVID-19 testing will be appropriate treatment of test results.
Liabilities: Negligence and Breach of Contract
Negligence occurs when an individual (or organisation) breaches the duty of care that they have to another, so as a football club, you have a duty of care towards your players, staff, and anyone entering your ground. Equally your healthcare professionals also have a duty to their patients.
There are a number of scenarios that may lead to a healthcare negligence claims resulting from COVID-19:
- Not providing suitable PPE for healthcare professionals / medical team so that they become infected, or they infect others.
- Not acting in accordance with government guidance (in relation to social distancing for example), or in relation to Premier League or EFL guidance (inspectors will be attending training grounds).
- Failure to implement appropriate protocols and procedures to protect staff and fans, or failure to adhere to those protocols.
- Incorrect or unevidenced medical advice provided by the club's medical team to players or staff.
- Failure by the medical team to identify and treat an infected person appropriately.
- Inadequate infection control such as inadequate disinfectant measures, or cleaning of premises and equipment.
- Inadequate surveillance of players and staff, including correct identification of vulnerable individuals.
This last point is important when you consider the vastly disproportionate effect that COVID-19 is having on people from a Black, Asian and Minority Ethnic background (as we mentioned in relation to employment disputes). Recent figures released by the ONS confirmed that, when adjusted for age, from 2 March 2020 - 10 April 2020, black men were 4.2 times more likely to die of COVID-19 than their white counterparts.
BAME footballers play at all levels in the game and the implication of this is that a proportion of a club's players may be at increased risk from COVID-19. You have a duty of care to look after all your players and, when it is known that a particular group is especially vulnerable, then that duty is enhanced.
This is already causing issues for clubs at the time of writing, as a number of BAME players have publicly stated that they will not return to training when that resumes.
Where the Liabilities Lie
In respect of where any potential liabilities may lie, that will often depend on who actually employs the healthcare professional accused of negligence.
- If you employ your healthcare team directly as employees, then it is likely that you would be liable as employers (vicarious liability).
- If healthcare staff are engaged as independent contractors, the general position is that the contractor themselves would be held liable for any negligence.
If you are engaging medical staff as independent contractors then, in addition to the usual registration checks, you should confirm that the practitioners also hold adequate insurance to cover potential negligence claims, including those arising from COVID-19.
This area of law can be complex, and you would be well advised to seek advice if you want to clarify the position on who would ultimately be liable for the negligent acts of your healthcare staff.
Breach of Contract
You may also be exposed to liabilities on the basis of a breach of contract, as the standard PL and EFL player contract places obligations on the club in respect of healthcare provision for players.
Clause 6.1.3 states that any medical or dental examinations arranged by the club must be "appropriate". What is appropriate will very much depend on the particular facts, but the issues identified above may also amount to a breach of contract, as a club employing a doctor who is not registered, or who behaves inappropriately, may also not be providing "appropriate treatment".
A further consideration for clubs should be whether COVID-19 would be considered under the contract as a player injury or a non-player injury.
A player injury is defined in the standard contract as an injury that does not arise from a breach of the player's obligations. It is therefore an injury that does not exclude the player from certain benefits of the contract. Those benefits can be substantial and may well include the club funding private medical treatment and also continuing to pay the player's wages for an amount of time as per clause 7.
In contrast, a player may be excluded from these benefits if the injury is one that is directly caused by a player's breach of his obligations (although that in itself may be dependent on if the injury is one covered by insurance). Clearly the circumstances of how a player contracted COVID-19 would be critical in considering if the infection was to be considered a player injury.
These unprecedented times present a significant amount of risk and liability for clubs and their medical and performance teams. Clubs and independently contracted practitioners have separate duties to discharge, which will be judged against the subjective circumstances of that club or practitioner. In short, it will simply not be enough for a club or practitioner to point to the Premier League / EFL protocols, or what other clubs are doing, to absolve themselves of any liability. It is incumbent on individual clubs and practitioners to satisfy themselves that the protocols, measures and practices and equipment in place allow them to discharge their duties to staff, players and patients
Please get in touch with us if we can help.
Originally published by Brabners, on June 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.