BCL Solicitors Associate David Hardstaff, a specialist in professional discipline and criminal litigation, discusses recent calls for emergency legislation to protect healthcare professionals from prosecution arising from incidents during the COVID-19 pandemic.
Healthcare organisations have written to the Secretary of State for Health and Social Care, pushing for the introduction of emergency legislation to protect healthcare professionals who could find themselves at risk of ‘inappropriate legal challenge when treating COVID-19 patients in circumstances beyond their control.’
The letter, which is co-ordinated by the Medical Protection Society and signed by organisations including the Medical Protection Society, the British Medical Association, the Royal College of Surgeons of Edinburgh, and the Doctors’ Association, cites the Prime Minister’s warning in November 2020 that if the NHS is overwhelmed, the country could face a ‘medical and moral disaster’ where doctors and nurses could ‘be forced to choose which patients to treat, who would live and who would die.’
As we enter the deadliest phase of the pandemic, few would argue that the prospect of the NHS finding itself overwhelmed is anything but likely, if not inevitable. It is against this backdrop that a significant proportion of doctors, 61% of 2,400 surveyed between 8-12 January 2021, have expressed concerns about facing an investigation as a result of a clinical decision made while working in extremely challenging, high-pressure environments. 36% of those surveyed specifically said they are concerned about the prospect of an investigation following a decision to withdraw or withhold life prolonging treatment due to capacity and resource constraints during the pandemic.
The letter refers to existing guidance on whether to administer or withdraw treatment, pointing out that this guidance does not provide legal protection and does not consider additional factors created by a public health emergency, such as COVID-19. It states, ‘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.’
It is suggested that the emergency legislation proposed should only provide protection where healthcare professionals have acted in good faith; it should be temporary only; and, it should apply retrospectively, from the start of the pandemic. Any emergency legislation would not, the letter clarifies, apply to ‘wilful or intentional criminal harm or reckless misconduct’.
The concept of ‘intentional criminal harm’ is fairly unambiguous and clearly it is not being suggested that doctors should have complete immunity from criminal liability. However, ‘reckless misconduct’, as referred to in the letter, is less clear as a concept. The letter does not specify what offences should not be prosecuted. The most obvious offence likely to be of concern is gross negligence manslaughter. The offence is committed where a death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. In order to prove the offence, the prosecution must establish the following elements:
- The defendant owed a duty of care to the deceased;
- By a negligent act or omission the defendant was in breach of the duty which he owed to the deceased;
- The negligent act or omission was a cause of the death; and
- The negligence, which was a cause of the death, amounts to gross negligence and is therefore a crime.
On first glance of the elements, it may not be immediately obvious how to account for the unique conditions created by the pandemic, so that due consideration is taken. Whether a breach of duty of care has occurred is tested by the objective standard of reasonableness. Applying this to the pandemic, it is difficult to imagine how any level of objectivity that is sufficiently consistent and fair could be achieved given the dramatically varied picture across the country. Comparing the experience of a doctor in a Cornish hospital in September 2020 with that of a doctor in Hackney in January 2021 would be pointless. The risk that healthcare professionals are treated unfairly as a result of the extreme variety of experiences is clearly something the authors of the letter had in mind.
The intervention follows the publication in September 2020 of the General Medical Council’s (GMC) COVID-19 specific guidance, ‘COVID-19: assessing the risk to public protection posed by a doctor as a result of concerns about their practice during the pandemic.’ The purpose of the guidance is to support decision makers in determining how to assess the overall risk to public protection (including patient safety, public confidence and upholding professional standards) posed by doctors in relation to allegations of fitness to practise in a clinical setting during the pandemic. The guidance is intended to account for the unprecedented demand on the healthcare system and the need to consider this as context when assisting a doctor’s fitness to practise. Examples given include concerns about clinical treatment where guidelines were unclear, or a doctor working outside their usual area of practice with limited or no support or guidance to do so safely.
While the GMC’s guidance was welcomed at the time (albeit some six months after the pandemic struck the UK in earnest) the level of protection it affords doctors is limited; not least because it has no bearing as to whether doctors are subject to criminal investigation and prosecution. Last week’s letter from healthcare organisations reflects this and suggests that as the pandemic stretches healthcare systems to breaking point, healthcare professionals fear they may unfairly be made accountable for failures that are more likely to be the result of a lack of resources and capacity.
That such a range of organisations has publicly raised this issue suggests there is a genuine and widely held concern amongst healthcare professionals. The letter highlights that healthcare professionals are vulnerable on several fronts, including in relation to criminal liability, but also in relation to professional discipline and fitness to practise. Being subject to investigation by the police and a professional regulator is an extremely stressful experience, with career, livelihood, and liberty at stake. Early advice and representation is crucial, particularly in cases where identifying a consistent strategy across the proceedings is necessary.
Healthcare organisations, regulators, and professionals will keenly await the Government’s response to the letter. There will be a time in the future when we will need to debate the range of legal and ethical challenge that have been raised by this pandemic, the letter concludes. In the meantime, it is hoped that some more practical assurances can be provided to healthcare professionals who have sacrificed so much already.