Membership information 0800 225 677
Medicolegal advice 0800 982 766

The hard truths exposed by COVID-19

15 July 2020

Dr Graham Howarth, Medical South Africa Lead at Medical Protection, on the difficult questions posed by stretched resources.

The COVID-19 pandemic has exposed some hard truths, particularly with respect to resources. Another area that has been exposed is the distinction between the medical ethics related to resourcing issues and the law.

The Critical Care Society of Southern Africa (CCSSA) has an excellent document on withholding and withdrawing life-supporting resources. The document is grounded in utilitarian principles of doing the greatest good to the greatest number. The document’s tension with the law is that the South African Constitution is based on the rights of the individual, raising the potential that the guidelines, while ethically sound, may be problematic legally. This has led to some interesting correspondence on resource allocation in recent editions of the South African Medical Journal.

With resources, the major issues revolve around the possibility of withholding treatment. Media and reports from Medical Protection members indicate that some families are not willing to accept resourcing decisions consistent with the criteria in the CCSSA documents and there have been threats of court proceedings and litigation. Once resources are overwhelmed, decisions on withholding treatment that is not available become moot.

Once the resources are overwhelmed one way of freeing up resources is by withdrawing treatment. Intensivists may have experience of withdrawing treatment when a patient is either dead or brain dead, or where ongoing care is deemed to be futile. However, resourcing decisions on withdrawing treatment during COVID-19 may be around withdrawing treatment on patients with a poor prognosis but where treatment is by no means futile – a very different scenario with potentially massive legal ramifications for the practitioner. Practitioners would be ill-advised to make such decisions in the absence of expert legal input.

Even when resources are overwhelmed, difficult decisions will occasionally have to be made when life-sustaining resources become available either by virtue of a patient no longer needing them, as their condition has improved, or when a patient dies. In the presence of overwhelmed resources, it is likely that there will be competition for the scarce resource even once it is freed up. It is then that the CCSSA’s guidelines may be most useful.

With respect to making these difficult decisions, Medical Protection offers the following advice:

  • When patients are admitted, although often very sick with low oxygen saturations, they are surprisingly lucid – the happy hypoxic phase. There is an opportunity then to talk to the patient about their wishes. Get and retain contact details for family members. Try and ensure that those sorts of difficult but extremely helpful conversations are being held and documented.
  • Involve family members where appropriate and if possible. While their involvement may be problematic in the acute stage their support could alleviate problems at a later stage. Subsequent medicolegal proceedings are often driven by dissatisfied family members.
  • Document everything contemporaneously – although easily said and perhaps more difficult to do, the importance cannot be overemphasised. Any review of a decision will probably occur years after the event and appropriate documentation may well be the only defence against criticism and censure. Documentation includes the condition of the patient, consent taken and discussions held with family and surrogate decision makers. Also document medical decision making, so if there is institutional advice from an ethics committee ensure that all documentation, particularly the ethics committee’s decisions, are retained.
  • Conceptualise and document the issues so anyone reviewing the case appreciates the circumstances in which the decision was made. For example, document inadequate resources, HCPs off sick, oxygen and transport problems, full facilities, no beds available, patients with a reasonable prognosis being denied a chance due to the prevailing conditions. Such issues all conceptualise the decisions made.
  • Involve others. Remember the resource that is being rationed or unavailable is probably not yours, although you may be the gatekeeper. Institutions need to be drawn into any acute and difficult decisions made. If court actions are threatened, at worst they could involve you but they should not be against you. Seek expert medicolegal advice if necessary.
  • Ultimately if after a difficult decision is made by a clinician and there are consequences, the clinician who implements the decision will probably take the brunt of any legal sequelae. Be extremely cautious, particularly if you do not agree with a decision made by an institution or the advice of a clinical ethics committee. Being responsible and accountable for a difficult decision that you agree with is difficult enough; to say that you did not agree with the decision in the first place is unlikely to make defending your actions arising from a decision any easier.