Doctors Call for New Legal Protections During Pandemic

Peter Russell

January 18, 2021

Editor's note, 18 January 2021: This article was updated with an additional comment.

Doctors and nurses should receive legal protection in case they are forced to choose between patients should the NHS be overwhelmed by the current COVID-19 pandemic, a coalition of health bodies said.

On November 2, 2020, Prime Minister Boris Johnson warned that a surge in cases of COVID-19 could lead to a situation in which "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 warned that the NHS faces significant pressures over the coming days and weeks. Earlier this month, Sir Simon Stevens, chief executive of NHS England, said "the pressures are real, and they are growing".

Decisions Made 'In Good Faith'

A letter coordinated by the Medical Protection Society to Matt Hancock, England's health secretary, said that their members were concerned they could be put in this position and worried they could subsequently face criminal investigation by the police.

Calling for an urgent change in the law, the letter said: "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."

Staff 'Should Be Reassured'

The Department of Health and Social Care (DHSC) said it was committed to helping health professionals focus on treating patients during the pandemic without fear of legal action.

It said that on April 2, 2020, the DHSC, NHS Resolution, and NHS England and Improvement, issued a joint letter to staff delivering NHS services to provide them with reassurance about clinical negligence indemnity. This was reinforced the following day by a clinical negligence scheme for coronavirus based on the powers in the Coronavirus Act 2020, which it said would meet liabilities arising from reorganisation of NHS services to respond to COVID-19 where existing indemnity arrangements were not already in place.

A DHSC spokesperson said: "We have reassured NHS staff that existing indemnity arrangements will rightly continue to cover the vast majority of liabilities which may arise, and we have made specific arrangements so any member of staff not covered by existing indemnity schemes will be protected under the Coronavirus Act.

"Health and care professional regulators have issued a joint statement making clear any concerns raised will be considered in the context of the challenging circumstances staff are operating in."

The Medical Protection Society said that while these moves were positive, "they do not address the concerns we are highlighting".

Matt Hancock, England's health secretary, told a Downing Street briefing: "The clear advice that I have is that it is not necessary at this point to change the law on this on this matter." 

Health Professionals Face an 'Enormous Burden'

Michael Mylonas QC of Serjeants' Inn, a specialist in the field of clinical negligence and professional discipline and regulatory law, commented "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."

Concerns

A survey of more than 2400 Medical Protection Society members conducted between January 8 and 12, found that 61% said they were concerned about facing an investigation as a result of a clinical decision made while working in an extremely challenging, high-pressure environment.

Also, 36% said they were 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.

One doctor who participated in the survey, speaking anonymously, said: "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."

Dr Dan Poulter, a Conservative MP and practising NHS doctor, called for "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".

The letter to the Health Secretary was co-signed by 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 the British Medical Association.

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