Medics are calling for emergency legislation to protect them from “inappropriate” legal action over COVID-19 treatment decisions made under the pressure of the pandemic.
A group of health organisations has written to the government urging it to update the law to ensure medical workers do not feel “vulnerable to the risk of prosecution for unlawful killing” when treating COVID-19 patients “in circumstances beyond their control”.
Hospitals in all NHS regions in England are already at, or near, the 92% bed capacity that NHS Improvement deems as being the safety threshold, and hospital admissions are rising in many areas.
The medics have argued there is no legal protection for COVID-related issues such as when there are “surges in demand for resources that temporarily exceed supply”.
The letter is addressed to Health Secretary Matt Hancock and was co-ordinated by the Medical Protection Society (MPS), and signed by the British Medical Association, Doctors’ Association UK, the Hospital Consultants and Specialists Association, the Royal College of Surgeons of Edinburgh, the British Association of Physicians of Indian Origin and Medical Defence Shield.
Prime Minister Boris Johnson warned this week there was a “very substantial” risk of hospital intensive care units being overwhelmed as more people are admitted than during the latest wave of coronavirus cases.
The medics’ letter says Mr Johnson warned in November of a “medical and moral disaster” if the NHS was overwhelmed and “doctors and nurses could be forced to choose which patients to treat, who would live and who would die”.
The health groups wrote: “With the chief medical officers now determining that there is a material risk of the 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.”
They said current guidance covering decisions on whether to administer or withdraw treatment “neither provides nor claims to provide legal protection”.
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‘COVID patients getting younger and sicker’
“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,” the letter adds.
“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national guidance, backed up by a clear statement of law, on when life sustaining treatment can be lawfully withheld or withdrawn from a patient in order for it to benefit a different patient, and if so under what conditions.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.
“We do not believe it is right that 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 being left vulnerable to the risk of prosecution for unlawful killing.”
The groups acknowledged that no healthcare professional should be “above the law” and emergency legislation should only apply to decisions “made in good faith” and “in circumstances beyond their control and in compliance with relevant guidance”.
They agreed the emergency law should be temporary and apply retrospectively from the start of the pandemic.
Many medics have been working outside their usual practice as hospitals struggle to cope with rising numbers of patients.
In November, the UK’s four chief medical officers, the NHS, the General Medical Council (GMC) and medical royal colleges wrote to doctors saying regulators would “take into account” the environment doctors are working in, while “due consideration” would be given to difficult circumstances” they might face.
A survey of 2,420 MPS members between 8 and 12 January found 61% were concerned about facing an investigation as a result of a clinical decision made in a high pressured environment.
And 36% were specifically concerned about following a decision to “withdraw or withhold life prolonging treatment due to capacity and resource constraints during the pandemic”.
A Department of Health and Social Care spokesman said: “Dedicated frontline NHS staff should be able to focus on treating patients and saving lives during the pandemic without fear of legal action.
“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.”
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