Doctors are currently in an unsatisfactory position. Even if they were to follow all available guidance on Covid-19 related clinical decisions to the letter, they still remain vulnerable to complaints in the future, either regulatory (to the GMC), criminal (the risk of prosecution for gross negligence manslaughter), or civil (being sued).
The Medical Protection defence organisation has called for the introduction of emergency legislation to protect doctors and other healthcare workers, especially those making difficult decisions on ventilator priority; in my view if the GMC were to update its regulatory response, emergency legislation shouldn’t be necessary.
Current guidance available to doctors
It is currently recommended that doctors follow both local and BMA advice. The BMA has said: ‘Doctors should be reassured that they are extremely unlikely to be criticised for the care they provide during the pandemic where decisions are: reasonable in the circumstances; based on the best evidence available at the time; made in accordance with government, NHS or employer guidance; made as collaboratively as possible; designed to promote safe and effective patient care as far as possible in the circumstances.’ It added that, ‘[s]hould decisions be called into question at a later day, they will be judged by the facts available at the time of the decision, not with the benefit of hindsight’.
Inadequate GMC response
The GMC has not issued specific guidance on whether it would, in the future, consider complaints based on rationing decisions made by doctors during the crisis. Instead, along with the chief medical officers, it issued a joint statement recognising that as the pandemic develops, clinicians ‘may need to depart, possibly significantly, from established procedures in order to care for patients’.
In another joint statement issued by the chief executives of the nine statutory regulators of health and care professionals, including the GMC, the context of clinical decisions was referred to thus: ‘Where a concern is raised about a registered professional, it will always be considered on the specific facts of the case, taking into account the factors relevant to the environment in which the professional is working. We would also take account of any relevant information about resource, guidelines or protocols in place at the time.’ Meagre reassurance.
Medical defence organisations
The MDU has argued that if a doctor faces a dilemma of competing patient interests, any decision to withdraw life-saving treatment that is in one patient’s interests should only be made if the court first rules it to be lawful. Is this really a practical way forward, especially in the current circumstances?
Many would agree with Medical Protection medical director Dr Rob Hendry that: ‘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 will treat them favourably and protect them in the future if their decisions and actions are challenged.’
However, in my view emergency legislation is not the answer.
In my view, emergency legislation is not the answer
Yes, the UK Government could introduce such a sweeping new law very quickly. New York State demonstrated such is possible with the Emergency Disaster Treatment Protection Act (‘EDTPA’). This provides any healthcare facility, professional or volunteer with immunity from civil or criminal liability for any harm or damage that may result from treatment of individuals with Covid-19. However crucially, that immunity does not extend to regulatory action against doctors
Perhaps potential UK equivalent legislation could be cast more widely to provide immunity from regulatory intervention. But if this was to cover all regulatory action, this might inhibit the GMC’s ability to look at the doctor’s wider practice when it needs to.
Taking the example of a doctor making a rational treatment decision based on resource rationing. But this doctor also failed to communicate appropriately with the patient or their family to explain why this decision was being taken. In this case, immunity from regulatory interference should not prevent an examination of the doctor’s wider fitness-to-practice issues.
Could the answer lie in a provision that restricts immunity to treatment decisions based on the rationing of resources, thereby allowing the GMC to continue to have oversight of a doctor’s wider practice?
A definitive regulatory statement?
With no apparent appetite for any such legislation, there is another obvious solution. The GMC should issue a definitive statement that, absent plainly, criminal, reckless or gross negligence, it will not entertain complaints about a doctor’s decision to prioritise one patient over another. Given Covid-19 has been hailed as the most serious public health emergency of this generation, such clarity seems merited.
We may well have passed the peak of recent Covid related deaths, but there are concerns the UK will experience a second wave of this virus later in the year, coinciding with the flu season and putting doctors and the NHS under further pressure.
The GMC should not continue to bury its head in the sand on this issue but should stand up and be counted. In the meantime, doctors are well advised to ensure they are keeping contemporaneous notes setting out the decisions they have taken, how they reached those decisions, any guidance or assistance sought in reaching those decisions, and reference to relevant resources, guidelines or protocols in force at the time.
Julie Norris is a law partner specialising in regulatory law and GMC proceedings at Kingsley Napley LLP