Doctors fear being sued for having to choose who receives COVID treatment amid NHS crisis

Rebecca Speare-Cole
·5-min read
Ambulances queue at the Royal London Hospital in London, Wednesday, Jan. 13, 2021 during England's third national lockdown to curb the spread of coronavirus. (AP Photo/Alastair Grant)
Ambulances queue at the Royal London Hospital in London during England's third national lockdown. (AP)
coronavirus latest news
coronavirus latest news

Doctors fear being sued for unlawful killing if they are forced to choose which coronavirus patients will receive treatment as the NHS becomes increasingly overwhelmed.

Hospitals have faced huge numbers of admissions as coronavirus continues to spread across the country.

Prime Minister Boris Johnson warned this week there was a “very substantial” risk of intensive care units being overwhelmed.

Now doctors are concerned they will face legal action if they are forced to make life or death decisions.

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A survey of some 2,420 Medical Protection Society members conducted between January 8 and 12 found that 61% were concerned about facing an investigation as a result of a clinical decision made in a high-pressure environment.

Some 36% were concerned about being investigated following a decision to “withdraw or withhold life prolonging treatment due to capacity and resource constraints during the pandemic”.

In a letter to the government, leading healthcare groups also warned that there was “no national guidance” for how doctors should proceed in the case of COVID-related issues like “surges in demand for resources that temporarily exceed supply”.

Paramedic transports a patient  from the ambulance to the emergency department at the the Royal London Hospital, on 15 January, 2021 in London, England. Hospitals across the country are dealing with an ongoing rise in Covid-19 cases, providing care to more than 35,000 people, which is around 50% more than at the peak of the virus in spring, with fears that hospitals in London may be overwhelmed within two weeks unless the current infection rate falls. (Photo by WIktor Szymanowicz/NurPhoto via Getty Images)
Hospitals across the country are dealing with an ongoing rise in COVID-19 cases, providing care to more than 35,000 people, which is around 50% more than at the peak of the virus in spring, with fears that hospitals in London may be overwhelmed within two weeks unless the current infection rate falls. (Getty Images)

The groups are urging the government to update the law to ensure medical workers do not feel “vulnerable to the risk of prosecution for unlawful killing” when treating coronavirus patients “in circumstances beyond their control”.

The letter read: “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.”

The letter, addressed to Health Secretary Matt Hancock, was signed by the Medical Protection Society, 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.

It also highlighted that in November Johnson had warned of a “medical and moral disaster” if the NHS was overwhelmed, where “doctors and nurses could be forced to choose which patients to treat, who would live and who would die”.

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The group said that despite there being guidance covering decisions on whether to administer or withdraw treatment, this “neither provides nor claims to provide legal protection”.

“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,” it added.

“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 health groups said no healthcare professional should be “above the law” and that emergency legislation should only apply to decisions “made in good faith” and “in circumstances beyond their control and in compliance with relevant guidance”.

They said the emergency law would be temporary and apply retrospectively from the start of the pandemic.

NHS staff outside an entrance to Southend University hospital in Essex.
NHS staff outside an entrance to Southend University hospital in Essex. (PA)

In November, the UK’s chief medical officers, the NHS, the General Medical Council (GMC) and medical royal colleges wrote to doctors urging them to be flexible during the pandemic’s second wave, which may require them to work outside their usual practice.

The letter said regulators, such as the GMC, would “take into account” the environment doctors are working in, while “due consideration” would be given to “difficult circumstances” they might face.

Conservative MP and NHS doctor 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.

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“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.”

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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