UK coalition seeks emergency indemnity over COVID-19 treatment decisions

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Emergency legislation is needed to protect British doctors and nurses from “inappropriate” legal action over critical COVID-19 treatment decisions made amid the pressures of the pandemic, argues a coalition of influential health organisations, reports MedicalBrief.

They wrote to Matt Hancock, the UK Health Secretary, calling for the law to be updated so medical workers do not feel “vulnerable to the risk of prosecution for unlawful killing” when treating coronavirus patients ‘in circumstances beyond their control’.

The letter, which was co-ordinated by the Medical Protection Society (MPS) and included the British Medical Association and Doctors’ Association UK, the Royal College of Surgeons of Edinburgh, the Royal College of Surgeons of Edinburgh, the British Association of Physicians of Indian Origin and Medical Defence Shield, states there are no legal safeguards for coronavirus-related issues such as when there are “surges in demand for resources that temporarily exceed supply”.

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.”

The MPS statement quoted Michael Mylonas QC, Serjeants’ Inn: “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.”

The coalition wrote: “With the chief medical officers now determining that there is a material risk of the National Health Service (NHS) being overwhelmed within weeks, our members are worried that not only do they face being put in this position but also that they could subsequently be vulnerable to a criminal investigation by the police.”

“There is no national guidance, backed up by a clear statement of law, on when life-sustaining treatment can be lawfully withheld or withdrawn from a patient in order for it to benefit a different patient, and if so under what conditions. The first concern of a doctor is their patients and providing the highest standard of care at all times.”

The health groups said no medical professional should be “above the law” and that emergency legislation should only apply to decisions “made in good faith”.

A Department of Health and Social Care 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.”

 

Full coalition statement issued by MPS

 

See also in MedicalBrief archives:

Prosecuting healthcare professionals for culpable homicide – who benefits?

 

Arrest warrants for specialists a ‘direct threat’ to healthcare delivery

 

Tolerating error in an imperfect system

 

Spiralling litigation: Time to strike a balance

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