The global pandemic has placed a massive strain on healthcare provision across the planet. 

As it progressed in the UK, resource shortages soon emerged, including lack of personal protective equipment (PPE), and other emergency measures followed: earlier discharge to free up beds, retired doctors being restored temporarily to the register, students qualifying earlier, doctors deployed to work in other specialities and fatigue of healthcare workers from the chronic pressures of trying to keep serving their patients. 

In such turmoil, mistakes and unintended patient harm will have occurred. Patients will complain about services rendered and a proportion may go on and litigate for compensation, raise a concern with the General Medical Council (GMC), or even instigate criminal investigations. The circumstances may relate to covid-19 directly, or indirectly, for example, longer waiting times for chronic disease specialist appointments, caused by the deployment of doctors to covid-19 services.

The GMC has stated that should it have to investigate the fitness to practise of a doctor, it will consider the context stating “healthcare professionals may need to depart from established procedures to care for patients in highly challenging circumstances” and “concerns…will always be considered on the specific facts of the case”. 

This statement by the GMC is welcome. But there is often a long time period between a complaint being made and the conclusion of a GMC investigation, and we cannot assume that the recent challenging circumstances will be long remembered by all concerned.

And what of the courts? What will they do if a patient sues or criminal charges are brought? Will they take into account the unique and sometimes dire circumstances?

Consider this example: a retired GP who has not practised medicine for five years, has returned to help with the pandemic; he now finds himself on a surgical ward faced with a patient in urinary retention with no other available staff to guide or support him. Does he catheterise, or not? If he does and a mishap occurs, by what standard will he be judged? That of a Urologist? A general surgeon? A GP? Or a doctor who has not worked in five years.

It is the context of a doctor’s actions that must be taken properly into account when assessing standards of care, especially when they occurred in the quasi battlefield conditions that a crisis brings. Context factors—such as working outside of their specialty, returning to help a resource-stricken NHS, not having worked for many years and being posted into an alien environment, lack of adequate equipment, human fatigue and massive workload are hugely important factors that affect the context in which this doctor found themselves working. 

The current Bolam-based standard of care does not provide sufficient contextual safeguards to defendants in a negligence action. But as I have said, being sued is not the sole risk for health care workers. The risk of criminal liability is also very real.

We are not in normal circumstances; we are in a global healthcare crisis. Crisis drives change, and we need at least a temporary change in our system to reflect that. 

Other countries have introduced immunity for doctors to protect them from being sued in relation to their treatment of patient’s during covid-19. Primarily to increase the capacity of the workforce—both for recruitment of doctors but also their redeployment into different specialties where needed—without fear.

In the US, 34 states have introduced some form of civil liability protection for physicians providing care in the pandemic. These laws have been introduced by Executive Orders or by directives from the Governor. They are temporary measures with a set end date. Some states (e.g. Delaware) extended their civil immunity provisions, which are normally limited to public employees, to any person assisting the state. Of course, there are limits to immunity from lawsuits—including gross negligence and wilful misconduct.

Scarcity of resources (e.g. ventilators, PPE or beds) in disasters or public health emergencies has also led to “Crisis Standards of Care” (CSC) being developed in 28 of the 50 US states. These CSC give structure and guidance to allocation of resources where demand outstrips supply and allow a shift from patient centred care to population centred. This removes the responsibility from the individual clinician.

What could the UK government do to protect healthcare professionals from criminal or regulatory investigation, following decisions made in good faith during this crisis?

Could something similar to the US model providing immunity be adopted, going beyond only claims, and ensuring there are appropriate safeguards in place for any patients harmed by reckless or intentionally harmful acts? 

Without doubt it is complicated when law changes are involved, but the government has demonstrated how quickly it can move to introduce new bills and bring temporary changes to regulations during this pandemic. Introducing temporary, emergency laws to protect doctors is achievable with drive and commitment, and an expert group could be established to help the government determine the details.  

The government can and should do more. We must protect our healthcare system, and its workers, now more than ever. 

Peter Mackenzie is Head of Quality Assurance at Medical Protection Society.

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.