Protecting The Protectors: Calls For Emergency Legislation To Prevent The Prosecution Of Healthcare Professionals When Treating COVID-19 Patients

• Published date: 25 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Personal Injury, Professional Negligence
• Law Firm: BCL Solicitors LLP
• Author: Mr David Hardstaff

UK 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 (MPS) 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 emerge from the deadliest phase of the pandemic, few would argue that the prospect of the NHS finding itself overwhelmed was 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, 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 MPS letter refers to existing guidance on whether to administer or withdraw treatment, pointing out that this 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 MPS letter clarifies, apply to "wilful or intentional criminal harm or reckless misconduct".

The need for reform

The concept of 'intentional...