Rob Hendry: Why legal protection is needed for doctors during the covid-19 crisis

Doctors will be making some very challenging decisions during the coronavirus crisis and have questions about how they can ensure they are acting lawfully. There are however significant questions about how effective the current legal framework is at addressing some of the unprecedented decisions that might need to be made during this time. The government should therefore look to introduce emergency laws that protect healthcare professionals for the decisions they make in good faith during this time, a change similar to new laws introduced in New York state, argues Rob Hendry from Medical Protection.

Decisions on whether to administer or withdraw life prolonging treatments are clinical decisions which doctors make every day on the basis of what is in the best interest of the patient before them. Informed consent and discussions with patients and their family is crucial when making decisions of such gravity.

However, in the context of this pandemic, there is potential that demand could overwhelm our ability to save lives and these long-standing ethical principles may be challenged.

Doctors—even while acting in accordance with local or national guidance—could also be exposing themselves to formal scrutiny of those decisions either now or in the future. It is not a reality that many will want to contemplate while they work tirelessly and selflessly to save as many patients as they can, but it is a grim possibility.

A range of organisations have been working to help navigate doctors through the range of challenging decisions they might have to make through this difficult time. Doctors have guidance they can refer to, whether it be from the royal colleges, the BMA, the General Medical Council and NICE. Hospitals also have ethics committee members and legal advisers who can provide advice taking into account the specific needs of the communities they serve. We also encourage doctors to contact their medical defence organisation for advice about the specific circumstances they are in and decisions they may have to make under very challenging circumstances.

But while guidance from these organisations is very useful, it does not provide a clear statement of law. There are, for obvious reasons, significant legal problems—not just in the UK, but in countries around the world during this global pandemic—with the concept of taking decisions that would impact on one life in order to save another.

As a result, doctors and other healthcare professionals who may have to make such decisions could find themselves in a vulnerable position if a subsequent legal challenge arises.

In this context, New York Governor Andrew Cuomo took the bold step of signing the Emergency Disaster Treatment Protection Act which grants temporary immunity from civil and criminal liability to New York healthcare professionals for the purpose of “promoting the public health, safety and welfare of all citizens” during the state of emergency.  This immunity does not apply to acts or omissions that “were caused by the willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.” The Act specifies that a resource or staffing shortage shall not be considered to be “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.”

Medical Protection has urged the UK Government to introduce similar emergency laws, so doctors know they are legally protected when making momentous decisions in very challenging circumstances when they make decisions in good faith and in compliance with the relevant local and national guidance.

Such legal protections should be temporary for the duration of the coronavirus crisis and they should also be limited so that it does not apply to wilful or intentional criminal harm or reckless misconduct.

Doctors and other healthcare professionals should not be above the law. But we cannot allow our frontline staff to be at risk when they are making decisions under extraordinary pressures and without the usual safeguards which may be possible owing to time and resource pressures. While there will be a time in the future when we will need to debate the range of ethical challenges that have been raised by this pandemic, these are difficult discussions that will need a significant amount of time as well as consideration of a wide range of different perspectives. In the meantime, this crisis is already upon us and doctors and other health care professionals need immediate action.

I hope that the extent to which doctors have to make heart-rending decisions about rationing will be kept to an absolute minimum. We must, however, be prepared and 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.

The tremendous efforts to expand NHS capacity may mean that such decisions do not have to be taken. However, there is a risk that an outbreak of the virus could exceed regional clinical capacity. We are aware of some debate about whether decisions around withdrawal of treatment should be brought to the Court of Protection.  It is questionable as to whether the Court of Protection has jurisdiction to opine on decisions relating to allocation of resource and removal of life sustaining treatment from one patient to support another. 

At present extremely challenging decisions such as this would be made by healthcare professionals. This is why Medical Protection has called upon the Government to introduce emergency laws to protect healthcare professionals and the clinical decisions they make during the crisis, similar to new laws introduced in New York state.

We are aware that pressure is being put on the government to produce national guidance. This would undoubtedly be helpful, but may take time to be agreed by Parliament, which is why we are calling for urgent action to put in place temporary protection of doctors who are acting in good faith.

In the meantime, in the absence of such protection, healthcare professionals should continue to make decisions based on their clinical judgement, discussions with colleagues, any advance decisions made by the patient and by speaking with their family. Doctors should also ensure they follow their local guidance and seek legal advice as needed, while also documenting the rationale for any decisions.

Rob Hendry is medical director at the Medical Protection Society (MPS).

Acknowledgment: Thanks to Pallavi Bradshaw, Medicolegal Lead for Risk Prevention Services at MPS, for her contributions to this article.

Competing interests: The MPS provides the right to request access to expert advice and support on clinical negligence claims, complaints, GMC investigations, disciplinaries, inquests, and criminal charges such as gross negligence manslaughter. This article was not commissioned.