Calls to protect doctors from litigation during COVID crisis
Leading healthcare organisations are calling for emergency legislation to protect healthcare workers who find themselves at risk of 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 on the call for protection, Member of Parliament for Central Suffolk and North Ipswich and practising NHS doctor, Dr. Dan Poulter said: “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.”
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