An emergency law would protect healthcare professionals from inappropriate legal challenge when treating covid-19 patients in good faith
On 2 November 2020, just before the third national lockdown, Boris Johnson, the UK 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 that the NHS is at risk of being overwhelmed within weeks. With reports of around 36,000 covid-19 patients currently in hospitals across the UK, including 3,500 on ventilation, many hospitals are being pushed to breaking point and the potential scenario the prime minister described appears increasingly likely.
During normal times, healthcare professionals 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. But this guidance naturally 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 guidance also does not provide, nor claim to provide, legal protection for those ultimately making the decisions.
The first concern of a doctor must be to their patients; providing the highest and safest standard of care at all times. It does not feel 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.
In a survey of over 2400 Medical Protection Society (MPS) members conducted this week, 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.
The Medical Protection Society has been campaigning for emergency laws since the start of the pandemic, to protect healthcare professionals from inappropriate legal challenge when treating covid-19 patients in good faith and in circumstances completely beyond their control. The Doctors’ Association UK, British Association of Physicians of Indian Origin, Hospital Consultants and Specialists Association, British Medical Association, Royal College of Surgeons of Edinburgh and Medical Defence Shield, have now added their voices and weight to this call, amid concern for their own members.
Let us be clear—healthcare professionals should not be above the law, and the 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 welcome, they do not address the concerns we are highlighting.
Legislation to protect healthcare workers from the challenges of this pandemic is not without international precedent. In New York state, for example, The Emergency Disaster Treatment Protection Act 2020 granted temporary immunity from civil and criminal liability to New York healthcare professionals during the state of emergency.
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. Support for doctors enhances their ability to support their patients.
Jane Dacre is President at the Medical Protection Society. She is also Professor of Medical Education at UCL Medical School and Physician and Rheumatologist at the Whittington Hospital in North London.
Competing interests: The MPS provides the right to request access to expert advice and support on clinical negligence claims, complaints, GMC investigations, disciplinaries, inquests, and criminal charges such as gross negligence manslaughter. This article was not commissioned.