Doctors and nurses are calling for protection from ‘inappropriate legal challenges,’ as they fear criminal investigations could follow decisions to withdraw life support while treating Covid-19 patients.
Last November Boris Johnson warned health workers could ‘be forced to choose which patients to treat, who would live and who would die,’ should the NHS become overwhelmed by the pandemic.
Health organisations including the Medical Protection Society and British Medical Associations have today written a letter to Health Secretary Matt Hancock warning the NHS is at risk of being overwhelmed within weeks.
The letter calls for new legislation that protects NHS staff from criminal or internal investigations, should they need to withdraw life support from one patient in order to focus on treating others.
It calls for the legislation to be backdated, to protect staff’s decision taken since the start of the pandemic.
Health organisations are calling for emergency legislation, backdated to cover the entire pandemic, that protects health workers from potential criminal investigations for withdrawing life support from certain patients
The letter reads: ‘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 letter to Health Secretary Matt Hancock, pictured in Downing Street on Wednesday, was signed by the likes of the British Medical Association and the Medical Protection Society
‘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.’
Among the other bodies to sign the letter are The Doctors’ Association UK, British Association of Physicians of Indian Origin, Hospital Consultants and Specialists Association, Royal College of Surgeons of Edinburgh and Medical Defence Shield.
It follows a survey of 2,400 health workers, which revealed more than a third are concerned about being investigated after deciding to ‘withdraw or withhold life prolonging treatment due to capacity and resource constraints during the pandemic’.
The Medical Protection Society survey also found 61% are concerned about facing an investigation as a result of a clinical decision made while working in an extremely challenging, high-pressure environment.
Conservative MP and practising NHS doctor 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.’
A Department of Health and Social Care spokesman told the BBC that existing arrangements will cover the ‘vast majority of liabilities’.
They added: ‘Dedicated frontline NHS staff should be able to focus on treating patients and saving lives during the pandemic without fear of legal action.’