Summary of ethical & legal advice or statements relating to personal liability
The Association of Anaesthetists and the Intensive Care Society (ICS) are aware that many of our members have concerns about their personal liability to civil, regulatory or criminal actions as a result of their work during the Covid-19 pandemic. These concerns may be borne of many factors, but in particular, there is apprehension about working outside one’s usual clinical area (for example in critical care) and about the prospect of managing an overwhelming surge of critically ill patients in a resource-constrained environment.
Neither the Association nor the Society can offer the protection afforded by membership of a medical defence organisation and we strongly encourage members to have current membership of one of these.
Neither is it possible for the Association or the Society to provide guidance for every possible scenario. However, some principles can be drawn from relevant regulatory, statutory and other guidance. While we encourage members to consult the original documents referenced below, we have reprinted some sections which may be of particular assistance.
Good record keeping is vitally important as an ability to ‘show your working’ and reasoning for a decision and action will be key evidence in justifying what has or has not been done
Guidance on decision making at the end of life was published in 2010:
GMC Guidance: Treatment and care towards the end of life: good practice in decision making; 2010 (paragraph 39)
‘You should not withdraw or decide not to start treatment if doing so would involve significant risk for the patient and the only justification is resource constraints. If you have good reason to think that patient safety is being compromised by inadequate resources, and it is not within your power to put the matter right, you should draw the situation to the attention of the appropriate individual or organisation, following our guidance on Raising and acting on concerns about patient safety (2012).’
In response to the Covid-19 pandemic the GMC and nine other statutory health and care regulators) released a joint statement, which may provide some reassurance in relation to the earlier guidance:
GMC Statement: Joint statement from Chief Executives of statutory regulators of health and care professionals; 03.03.2020
‘We recognise that the individuals on our registers may feel anxious about how context is taken into account when concerns are raised about their decisions and actions in very challenging circumstances. 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.’
Intensive Care Society
Guidance from the Society was published the end of March. It is a consensus document, with advice from a number of sources including a solicitor (Robert Tobin, Kennedy’s) experienced in dealing with medico-legal matters:
ICS Legal and Ethical Advisory Group (LEAG): Statement on legal liabilities of clinicians as individuals during coronavirus pandemic; 31.03.2020
‘Even if a doctor considered certain treatment might help a patient but such treatment was simply not available – perhaps because there were no ventilators available in that hospital or any other reasonably and realistically proximate hospital - the doctor cannot be found at fault for not providing such treatment. It was simply not possible. The hospital Trust, the CCG or perhaps the wider NHS may be criticised for failing to ensure those resources were available but that is a different matter.’
‘Doctors must act within the law and the rules of their profession. It is when a doctor departs from this and/or acts irresponsibly or unreasonably that they may be required to explain their actions to the GMC. Even in those circumstances, the GMC will take account of the extraordinary circumstances in which they were working. That is why good record keeping is so vitally important as an ability to “show your working” and reasoning for a decision and action will be key evidence in justifying what has or has not been done.’
‘An individual doctor cannot be held criminally responsible if they recommended a treatment for a patient but, due to a lack of resources, such treatment could not be provided. It is not that individual doctor’s fault nor in their control and they cannot be held responsible for that.’
Robert Tobin also contributed to an Association of Anaesthetists webinar on dilemmas (04.04.10) when he spoke about ‘Legal liabilities during the coronavirus pandemic’. His talk covered all of the above topics: civil, regulatory and criminal matters.
A number of national organisations have produced guidance on the ethical issue raised by the pandemic. We believe the guidance from the BMA is helpful, but we note others have found it lacking.
BMA: Covid-19 ethical issues: a guidance note (dated 03.04.2020)
‘Although doctors would likely find these decisions difficult, if there is radically reduced capacity to meet all serious health needs, it is both lawful and ethical for a doctor, following appropriate prioritisation policies, to refuse someone potentially life-saving treatment where someone else has a higher priority for the available treatment’
‘It is essential that, should they be required to, doctors make these decisions in accordance with decision-making protocols rolled out by employing or commissioning organisations’
‘For responses to a pandemic to be ethically defensible, consideration must be given to procedural ethics – to ensuring that decisions at all levels are made openly, accountably, transparently, by appropriate bodies and with full public participation (to the extent possible within the timescale within which decisions need to be made). There may also be a role for scrutiny of individual decisions by a second doctor, or where appropriate by properly constituted clinical ethics committees, where time permits.’
Serjeants’ Inn Chambers Medical Division Law Blog
This blog gives an alternative view to that provided by the BMA.
Finally, Dr Dan Harvey, consultant in adult critical care in Nottingham, contributed to an Association of Anaesthetists webinar with his talk ‘Pandemic ethics: achieving moral balance’. In it, he explains how clinicians already have the skills to make moral and ethical judgements and offers worked examples of using a formal and freely available tool to help balance patient autonomy, harm, justice and benefit and to record the process of reaching the judgement.
Members who have concerns about the resources available locally to manage a surge should raise the matter with their line manager (for example, head of service or clinical director). Trusts (or their equivalent) will have an established process for escalating these matters.
While it is not possible to provide blanket reassurance to cover all eventualities, it is our understanding that any civil action against an employee would be managed by the trust (or their equivalent) who have vicarious liability for their employees’ actions, and that criminal actions seem unlikely (and may be directed at organisations rather than individuals).
In addition, the Association of Anaesthetists and the Society have written to regulators, justice ministries, directors of public prosecutions, and chief coroners* on behalf of members detailing our concerns about possible civil, regulatory and criminal actions arising as a result of the extraordinary circumstances in which we are currently practicing.
*(Attorney General [England and Wales], the Director of Public Prosecutions [England and Wales], the Director of Public Prosecutions [Ireland], the Public Prosecution Service for Northern Ireland, the Office of the Crown Office and Procurator Fiscal Service, the Chief Coroner [England and Wales], the Coroners Service for Northern Ireland, the Coroner’s Society for Ireland, the General Medical Council and the Irish Medical Council).