A coalition of leading healthcare organisations have urged the Government to introduce emergency legislation to protect healthcare workers who could find themselves at risk of inappropriate legal challenge when treating Covid-19 patients in good faith and in circumstances beyond their control.
On 2 November 2020 the Prime Minister warned that if the NHS is overwhelmed, we could face a ‘medical and moral disaster’ where doctors and nurses could ‘be forced to choose which patients to treat, who would live and who would die’. Since then chief medical officers have determined the NHS is at risk of being overwhelmed within weeks.
In a letter to the Health Secretary signed by Medical Protection Society, The Doctors’ Association UK, British Association of Physicians of Indian Origin, Hospital Consultants and Specialists Association, Royal College of Surgeons of Edinburgh, Medical Defence Shield and British Medical Association, the coalition said their members are worried that not only do they now face being put in this position, but also that they could subsequently be vulnerable to a criminal investigation by the police.
The letter stated: “While doctors have a range of valuable guidance they can refer to on administering and withdrawing treatment - whether it be from their employing Trust or Board’s Ethics Committee or from their Royal College, union, regulator or NICE - this guidance neither provides nor claims to provide legal protection. It also does not consider Covid-19 specific factors such as if and when there are surges in demand for resources that temporarily exceed supply. There is no national guidance, backed up by a clear statement of law, on how clinicians should proceed in such a difficult situation.
“The first concern of a doctor is their patients and providing the highest standard of care at all times. We do not believe it is right that they or other healthcare professionals should suffer from the moral injury and long-term psychological damage that could result from having to make decisions on how limited resources are allocated, while at the same time feel vulnerable to the risk of prosecution for unlawful killing.
“Let us be clear - healthcare professionals should not be above the law, and the emergency legislation we propose should only apply to decisions made in good faith, in circumstances beyond their control and in compliance with relevant guidance – it would not apply to wilful or intentional criminal harm, or reckless misconduct. Such an emergency law would also be a temporary response to the Covid-19 crisis, applying retrospectively from the start of the pandemic.
“The Government moved quickly to create clarity over indemnity arrangements for clinical negligence claims via the Coronavirus Act 2020, and the GMC also acted to reassure doctors by publishing guidance for their staff on how they will take the context created by Covid-19 into account when considering complaints about doctors. While these measures are positive, they do not address the concerns we are highlighting.
“We do not underestimate how difficult this issue is. There will be a time in the future when we will need to debate the range of legal and ethical challenges that have been raised by this pandemic, and these discussions will not be easy. In the meantime, this crisis is upon us now and healthcare professionals need immediate action.”
Commenting, Member of Parliament for Central Suffolk and North Ipswich and practising NHS doctor, Dr Dan Poulter said: “Given the unprecedented scale of the challenge currently facing our NHS, it is essential that our hardworking doctors can focus fully on delivering the best possible care for their patients without fear of retribution.
“With the current wave of the Covid-19 pandemic stretching our NHS to the limit, there are increasing numbers of patients requiring life-sustaining care and we could very soon be in a position where doctors may be forced to choose which patients to treat with the limited resources available to them. It is important that we see greater clarity provided by Government to ensure that there is full protection in place to protect frontline staff from complaints that might arise as a result of the challenging working conditions created by the pandemic.”
Michael Mylonas QC, Serjeants’ Inn, added: “Acute services throughout the country are already under unprecedented pressure and this will increase substantially with the combined impact of the more transmissible strains and growing numbers of medical staff self-isolating due to infection.
“In emergency departments throughout the country, doctors will have to take decisions as to who should receive ICU services. In the absence of national guidance, doctors in different hospitals – perhaps even neighbouring hospitals –may well apply different criteria and reach different decisions.
“This places an enormous additional burden on healthcare workers, provides no certainty about the treatment that will be available on attending hospital and invites legal challenge. The Government must provide decisive leadership on this issue.”
Notes to editors
- In a survey of over 2400 Medical Protection Society (MPS) members conducted this week (8-12 January 2021) by MPS, 61% said they are concerned about facing an investigation as a result of a clinical decision made while working in an extremely challenging, high-pressure environment. More than 1 in 3 (36%) specifically said they are concerned about the prospect of an investigation following a decision to withdraw or withhold life prolonging treatment due to capacity and resource constraints during the pandemic.
- Anonymous comments from doctors who participated in the above survey:
“When we get through these horrific times, if I were to find myself or my colleagues around the country being dragged in front of the courts then this would be unbearable and a huge injustice to a group of people who have done nothing but the best they could.”
“Recent cases on medical manslaughter have really opened my eyes to incarceration. Although the GMC has been reassuring, the courts are another matter of fear. Bereaved relatives may not understand the limitations.”
“We are desperate for some protection; we have enough to deal with without worrying about the inevitable investigations, lawsuits, and GMC action that is coming our way for doing the best we can in an unprecedented healthcare catastrophe.”
“I work as an ICU consultant - the only thing I’m really worried about is getting to the stage of rationing treatment for patients.”
“Doctors have stepped up to the mark to provide the best possible care for their patients under such challenging circumstances, when their own lives and families are in danger. Under such extreme pressures we are making difficult decisions with limited resources and have put aside our own fears for the bigger picture and health of the nation. [We need] guarantees of protection from inevitable shortcomings of what we can offer for best quality care.”