HCSA - the hospital doctors’ union has urged the Government to introduce emergency legislation to give greater legal protection for healthcare staff treating patients with Covid-19.
The union, together with a coalition of leading healthcare organisations led by the Medical Protection Society, are concerned that current loose commitments made by regulator the GMC will not be enough to spare front-line staff within an NHS on the brink of being overwhelmed from being dragged through long and traumatic legal processes.
The issue has been placed into stark focus as an upsurge in the pandemic means doctors could now face having to determine patient treatment based on available resources rather than individual need.
HCSA President Dr Claudia Paoloni said: “As the NHS experiences extreme pressure - with resources being stretched beyond the limit - medical staff are working under unprecedented conditions and having to make patient care choices ordinarily they would not be required to make, based on availability of staff, beds, and respiratory support capacity.
“This leaves them vulnerable to future criticism, when the acute pressures of Covid-19 have been forgotten. We have jointly written to the Health Secretary today for extra protection against litigation and prosecution of our front-line staff for decisions made during these extraordinary circumstances.”
The letter to the Health Secretary also signed by MPS, The Doctors’ Association UK, British Association of Physicians of Indian Origin, Royal College of Surgeons of Edinburgh, Medical Defence Shield, and the BMA, warned hospital doctors are worried that not only do they now face being put in this position, but also that they could subsequently be vulnerable to criminal investigation.
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.”
Download the letter in PDF format