‘Emergency laws needed’ to protect doctors from Covid-19 legal challenges

Emergency laws are needed to protect health workers at risk of legal challenges over treatment decisions for coronavirus patients, Medical Protection has warned.

The organisation, which supports the interests of its healthcare profession members, said it was concerned over doctors’ vulnerability to criminal and regulatory investigations.

Medical Protection warned that doctors deciding on how to triage patients, and whether to give or stop life-prolonging emergency treatments, were having to do so “under enormous strain” during the pandemic, when “surges in demand temporarily exceed supply”.

It said: “In everyday practice, doctors make triaging decisions in the best interests of the patient in front of them, based upon the benefits and limitations of different treatment options.

“This pandemic however has the potential to ask doctors to also consider factors such as the availability and capacity of current resource when making decisions which would otherwise be purely clinical.”

Medical Protection claimed concerns have been raised over the “lack of clarity” about whether it was lawful for a ventilator to be withheld or removed from one patient in order to sustain the life of someone else.

“In these types of circumstances there are, for obvious reasons, significant legal problems which could leave individual clinicians vulnerable,” it said.

It added: “As a result, not only is a huge humanitarian burden being placed on doctors that may cause moral injury and long-term psychological damage, they also face the risk of personal accountability if and when legal challenges arise.”

It urged the Government to follow similar action taken in New York state in the US by introducing laws that would cover decisions about when treatment can be withheld and when it can be withdrawn.

The temporary legal protections should only last the duration of the coronavirus crisis and be limited so they do not apply to intentional criminal harm or reckless conduct, Medical Protection said.

Dr Rob Hendry, medical director at Medical Protection, said: “Healthcare professionals want the very best for their patients and doctors across the country are doing everything they can to ensure those infected with the virus get the best medical treatment possible.

“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 (General Medical Council) will treat them favourably and protect them in the future if their decisions and actions are challenged.”

He added: “Hopefully heart-rendering decisions about rationing can be avoided by containing the spread of the virus, but we must be prepared.

“We must provide protection to our frontline healthcare teams to allow them to focus on the excellent care they are currently providing to patients and to make clinical decisions free from the fear of the risk of criminal charges.

“Now more than ever, doctors need to be able to focus on saving lives, not on avoiding prosecution.”

Dr Christine Tomkins, chief executive of the Medical Defence Union (MDU), which supports healthcare workers with medico-legal issues, said that under the law, if a doctor faces a “dilemma” over whether to withdraw treatment from one patient to support another, they should “first ensure their trust makes an emergency application for a declaration to the Court of Protection”.

She added: “No action to withdraw life-saving treatment which is in the patient’s interests should occur unless the court first rules this is lawful.

“Emergency declarations of this kind can be obtained very swiftly.”

Medical Protection’s concerns follow the Royal College of Nursing (RCN) urging members to refuse to treat patients as a “last resort” if they were not provided adequate personal protective equipment (PPE).

The RCN recommended those choosing to withdraw care should keep written justifications of their decisions and told nurses to brace for attempts to sack them, claims of clinical negligence, and possibly facing criticism at inquests or even criminal charges.