As the 2019 Ashes series heats up, a new football season gets under way and the rugby world cup is on the horizon, the issue of concussion in elite sport is once again in the spot light. This article considers the medico-legal aspects of concussion injury, the duty of care owed by those involved and the governance measures which organisations can put in place to minimise the risk of concussion related litigation.

A summer of concussion injuries

In April the Tottenham Hotspur defender Jan Vertonghen tried unsuccessfully to play on after a blow to the head in a European cup match. A few weeks later at the Cricket World Cup the Afghanistan batsman Hashmatullah  Shahidi was knocked to the floor and his helmet broken after being hit on the head by a cricket ball from England’s Mark Wood. He got up, underwent an assessment and faced another short pitched ball in the very next delivery but then missed the next two games. Shortly afterwards the International Cricket Council confirmed that as of 1st August 2019 men and women’s teams across all formats of International first class cricket will be allowed to replace concussed players during matches. Decisions on concussion will be made by the team’s medical staff and the incoming player, who can bat or bowl, should be deemed a “like for like” replacement approved by the match referee. The injury to the former Australian captain Steve Smith in the first innings of the second test led to the introduction of the first concussion substitute in Test cricket.

Rugby has similar measures but in football FIFA have previously expressed concern that concussion substitutes could open a loophole for cheating. UEFA has asked they reconsider this as the three minutes allowed currently is not long enough to assess a player.

The legal position

Any professional club owes a legal duty of care to take all reasonable steps to look after the health, safety and welfare of the athletes it employs. That duty is often discharged through the medical staff assessing and managing the injury. Those bringing a claim on behalf of an injured athlete may look to sue not only the treating doctor but also the employer, organiser and sometimes a governing body. Watson v British Board of Boxing Control[2001] established that, even allowing for a voluntary assumption of risk, a governing body owed a duty of care to ensure the safety of participants.

While numerous cases in English law explore the extent of the duty of care, it was expected that the claim by the former professional Rugby Union player Cillian Willis  against his employer Sale Sharks and a number of treating doctors would look at the duty of care in respect of concussion injury. Willis alleged the club and various medical staff were negligent in allowing him to play on in a LV Premiership game after he suffered concussion. The claim against the club was dropped and eventually the case resolved out of court so no legal judgment is available but the arguments will invariably have centred on the alleged failures by medical staff at the club to properly assess and manage the injury.

Practical considerations to reduce the risk of litigation:

Legal claims in relation to concussion injury can be made many years after the event. To minimise the risk of such litigation, and more importantly ensuring appropriate governance and player welfare, all clubs in whatever division they operate should ensure: 

  • Up to date concussion protocols and guidance are in place and staff are trained on these and a clear archived paper trail kept. This will be the first documentation asked for by any lawyers investigating a claim.
  • Pitchside assessments—with sufficient time allowed and using a concussion substitute where possible—are undertaken by a member of the medical team acting in the best interests of the player / patient. That could mean removal from the field of play despite the protestations of the player and those around them. The doctor’s duty of care is to their patient i.e the athlete they are treating. All other considerations such as the impact on the match outcome are irrelevant. It follows therefore that an independent doctor should not be needed.
  • Any subsequent return to play (RTP) decision is in line with the club and governing body protocols and made in conjunction with the athlete following a fully informed discussion.  If he or she has suffered previous concussions the doctor must take this into account and advise on the effect of repeated impacts. The issue of whether an athlete was properly informed prior to any RTP will rest on whether he or she was warned of all the material risks relevant to him or her including  long term and short term risks - even if it is based on  research evidence.
  • Consent and record keeping policies back up the approach being taken and the concussion protocol should be read in conjunction with these.
  • Regular audit of concussion management cases is undertaken to help establish an evidence base of best practice which can be referred to in any subsequent litigation.

Ultimately many athletes will not want to leave the field of play or may choose to RTP as quickly as possible after such an injury. The medical professionals responsible, as well as the athlete’s employer, must show that they have discharged their duty of care to protect the player.

The way forward

The Rugby World Cup 2019 is billed as featuring the most comprehensive player welfare standards ever intimated for a rugby event including a substitution process for head injury assessment. Medical and technological advancements such as saliva testing of players and mouthguards sending head impact data to team doctors will no doubt develop over time but it is the robust practical measures pitch-side which will likely have the greatest effect.

Ultimately all governing bodies in sport—including football—need to consider a standard uniform approach reflecting international best practice for concussion injury. This could include concussion substitutes to allow for longer assessment periods and automatic removal where a player is knocked out. In a court of law when considering if a doctor, club or governing body had discharged its duty of care it will not be enough to say concussion substitutes were not introduced because there was a risk of bending the rules. An independent doctor may be the way forward in some sports but until then it is for those involved to get their own house in order through good governance.

How Capsticks can help

Capsticks have advised medical teams working in Premier League football, as well as international football and athletics, on clinical governance and risk management through a programme of policies and staff training. For further information please contact Majid Hassan.