A new frontier in the boundary between professional and private life – solicitors’ undertakings
The Medical Protection Society (MPS) and others have called for the introduction of emergency legislation to protect doctors and other healthcare workers from criminal or regulatory action for clinical decisions taken during the coronavirus crisis. We look at this proposal below and what could be done to reassure doctors they will not face a GMC investigation for rationing decisions made in the current pandemic.
The Medical Protection Society (MPS), (a protection organisation for medical, dental and healthcare professionals around the world), has expressed concern that there is a lack of clarity as to the circumstances where it would be lawful for lifesaving intervention (such as a ventilator) to be withheld or removed from one patient in favour of another.
Doctors are being told by the GMC to follow current local and national policies which set out agreed criteria for access to treatment and where possible, to have input from local ethics committees. Doctors should also take direction from guidance issued by the British Medical Association (BMA).
The BMA’s guidance has been prepared to assist doctors with decision-making on ethical issues which are likely to arise when providing care and treatment during the pandemic.
The guidance advises that, in situations where demand outstrips supplies, it is “legal and ethical” to prioritise treatment among patients. These decisions must be made on the basis of clinically-relevant factors, and senior leadership at the organisation should make the decisions about how resources are allocated.
The key criteria cited by the BMA for doctors to consider when determining which patients qualify for admission to intensive care or the use of scarce intensive treatments include:
The difficulty is that doctors are finding that there is a lack of local and national policies, and no agreed criteria for access to treatment in response to the pandemic.
The National Institute for Health and Care Excellence (NICE) has issued guidance which considers clinical decision-making during the COVID-19 crisis, however, it is silent on the need to prioritise access to critical care when demand exceeds supply.
The Royal College of Physicians, supported by other health organisations, published ethical guidance for frontline staff dealing with the pandemic. It reminds doctors they “still need to ensure that care is provided in a fair and equitable way” and advises that clinicians should receive support from the Government as well as their employing trusts or health boards.
The Department of Health & Social Care’s guidance recognises the increased pressures and demands on the NHS and seeks to provide assistance to planners and strategic policy makers at local, regional and national level; this includes support on prioritising individual care needs. It states that “consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making.”
A clear criteria is needed however, to provide doctors with clarity on the ethical and legal considerations surrounding patient prioritisation and rationing to ensure consistent decisions are being made across the UK.
Even if doctors were to follow all available guidance to the letter, they remain vulnerable to complaints in the future, either regulatory (to the General Medical Council), criminal (with the risk of prosecution for Gross Negligence Manslaughter), or civil (being sued). Has there been any or any adequate, reassurance that GMC complaints will not be entertained?
In the BMA’s view, from “an ethical and professional regulatory perspective - which is also likely to govern the approach of the Courts if there are any legal challenges - doctors should be reassured that they are extremely unlikely to be criticised for the care they provide during the pandemic where decisions are: reasonable in the circumstances- based on the best evidence available at the time- made in accordance with government, NHS or employer guidance- made as collaboratively as possible - designed to promote safe and effective patient care as far as possible in the circumstances.” (Emphasis added).
The BMA note, rather obviously, that, “[s]hould decisions be called into question at a later day, they will be judged by the facts available at the time of the decision, not with the benefit of hindsight”.
The GMC has not issued any guidance on whether it would, in the future, consider complaints based on rationing decisions made by doctors during the crisis. Instead, along with the Chief Medical Officers, it has issued a joint statement recognising that as the pandemic develops, clinicians “may need to depart, possibly significantly, from established procedures in order to care for patients”. In another Joint Statement issued by the Chief Executives of the nine statutory regulators of health and care professionals, including the GMC, this paltry measure of reassurance was effectively repeated:
We recognise that the individuals on our registers may feel anxious about how context is taken into account when concerns are raised about their decisions and actions in very challenging circumstances. Where a concern is raised about a registered professional, it will always be considered on the specific facts of the case, taking into account the factors relevant to the environment in which the professional is working. We would also take account of any relevant information about resource, guidelines or protocols in place at the time.”
The Medical Defence Union (MDU) has published advice that those withdrawing life-saving treatment that is in the patient’s interests, should not do so unless the court first rules it to be lawful, lest civil or regulatory consequences may follow. Dr Christine Tomkins, MDU chief executive said:
…As the law currently stands, if a doctor is faced with the dilemma of competing interests between two patients, and the possibility of withdrawing treatment which is in one patient’s best interests from that patient in order to treat the other patient, the doctor should first ensure their Trust makes an emergency court application for a declaration. No action to withdraw life-saving treatment which is in the patient’s interests should occur unless the court first rules this is lawful…”
Read together, these statements reveal the true position for doctors: there is presently no reliable guarantee that they will not be exposed to complaints to the GMC (or indeed an adverse finding on the back of such a complaint) for making a rational, fully informed decision (compliant with the BMA guidance and local protocols) to prefer one patient over another when resources do not permit them both to be treated.
This is a wholly unsatisfactory position to leave doctors in.
Dr. Rob Hendry, Medical Director at the MPS, has argued that legislation is the solution to the risks that doctors presently face:
It is simply not fair for doctors already under immense pressure to be asked to make difficult treatment decisions based on a hope that the courts and the GMC will treat them favourably and protect them in the future if their decisions and actions are challenged.
The UK Government has already shown that it can introduce sweeping new laws very quickly. New York state has also demonstrated that such changes are possible. Similar laws need to be introduced quickly to protect doctors and other healthcare professionals in the NHS for decisions they make in good faith and in compliance with the relevant local and national guidance.”
The New York legislation referred to by the MPS is the Emergency Disaster Treatment Protection Act (‘EDTPA’), which came into force on 3 April 2020. The EDTPA provides that any healthcare facility, professional or volunteer, has immunity from civil or criminal liability, for any harm or damage that may result from treatment of individuals with COVID-19. That immunity does not apply to conduct amounting to gross negligence, reckless or criminal misconduct. The legislation operates retrospectively from 7 March 2020 and will remain in place for the duration of New York’s COVID-19 emergency declaration.
The objective of the EDTPA is to protect healthcare professionals from claims arising from reasonable clinical decisions that are necessitated in response to the outbreak. Crucially, immunity under the EDTPA does not extend to regulatory action against doctors; there is thus no statutory bar to complaints being made to the Office of Professional Medical Conduct (‘OPMC’), (New York’s equivalent to the GMC in the UK) and to those complaints being investigated in the usual way.
The introduction of legislation in similar terms to the EDTPA, would provide statutory protection from civil and criminal action, meaning that absent plainly, criminal, reckless or gross negligence, no complaint would be entertained following a doctor’s decision to prioritise one patient over another.
That still leaves the potential for a regulatory complaint.
The EDTPA does not provide immunity to New York’s doctors from regulatory scrutiny of their COVID-19 based decision making. Could UK legislation be cast more widely to provide immunity from regulatory intervention of such decisions? In principle, the answer must be yes.
From a practical perspective, because the GMC’s remit is wider than just scrutinising clinical decision-making, legislation including immunity from all regulatory action, may inhibit its ability to look at a doctor’s wider practice. Taking the example of a doctor making a rationale treatment decision based on resource rationing, who also failed to communicate appropriately with the patient or their family, to explain why this decision was being taken, leaving them distressed and confused: immunity from regulatory interference might properly extend to the clinical decision but cannot be said to appropriately extend to the wider fitness to practise issues. There is an argument that to do so would run contrary to the GMC’s statutory objectives to promote and maintain public confidence in the profession and maintain proper professional standards and conduct of its members. Perhaps that is one of the reasons why the immunity granted by the EDTPA does not extend to professional misconduct, as the scope for complaints is so wide.
Could the answer lie in a provision that restricts immunity to treatment decisions based on the rationing of resources, thereby allowing the GMC to continue to have oversight of a doctor’s wider practice? That would go some way in striking the right balance between recognising the difficult decisions our doctors are being asked to make at the coalface of this crisis, whilst recognising there is a public interest in the regulator being able to investigate a misconduct complaint.
In the absence of any apparent appetite for legislation that provides regulatory immunity, what other solutions are there? The most obvious answer would be for the GMC to issue a definitive statement that, absent plainly criminal, reckless or gross negligence, it will not entertain complaints about a doctor’s decision to prioritise one patient over another. Given COVID-19 has been hailed as the most serious public health emergency of this generation, such clarity seems merited.
There are concerns the UK will be hit with a second wave of this virus later in the year, coinciding with the flu season, and we might expect the pressures on the NHS to sky rocket. Parliament and the GMC should proactively use this time to seek a solution to this issue.
In the meantime, what is clear from the guidance issued by the regulator and the BMA is the context in which doctors are making these critical decisions. Now more than ever, clinicians should ensure they are keeping contemporaneous notes setting out the decisions they have taken, how they reached those decisions, any guidance or assistance sought in reaching those decisions, and reference to relevant resources, guidelines or protocols in force at the time.
 Potential immunity from civil and criminal claims made against doctors as a result of rationing decisions made in the current crisis is outside the scope of this piece.
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