Samuel Lindsay and Duncan Astill of Mills & Reeve revisit earlier discussion about whether health professionals should be concerned about criminal prosecutions in light of the current pandemic and the Government’s decision not to consider a new statutory defence.
In June of 2020, we offered our view on concerns that healthcare professionals may face criminal liability as a result of decisions made under pressure during the pandemic. At the time, the country was managing the first wave of coronavirus cases, and demand on frontline services was expected to overwhelm supply.
Six months on and the third wave has brought unprecedented pressure to bear on NHS services. In November, Boris Johnson, declared publically that the NHS could be overwhelmed, and that doctors and nurses would be “forced to choose which patients to treat, who would live and who would die.” A rapid rise in the number of infections forced a new national lockdown in December, and data published by NHS England put the daily count of confirmed COVID-19 patients in hospital on 18 January at 39,181, a new high, and almost double the figure from the height of the first wave in April 2020.[1]
As a result of the current lockdown, that number is now trending downward, but it is not an exaggeration to say that NHS services remain stretched to breaking point.
Persisting concerns amongst clinicians
Earlier in January, the Medical Protection Society carried out a survey of members and found that out of the 2,400+ participants, 61% were concerned about an investigation as a result of a clinical decision made while working in an extremely challenging, high-pressure environment. Furthermore, that more than one in three (36%) 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.
Emergency legislation
In response to the concerns of frontline staff about regulatory sanctions and criminality resulting from decisions of the sort highlighted in the MPS survey, a coalition of healthcare organisations wrote to the Secretary of State for Health and Social Care on 14 January 2021, asking that temporary changes to the law be made so as to protect from criminality clinicians required to make difficult decisions in good faith and in circumstances beyond their control during the pandemic. The letter asserted that such a change would go some way to providing clinicians with the peace of mind required to enable them to achieve the best outcomes for their patients and safeguard their own mental health and wellbeing too.
The idea is not without precedent. In New York State, the Emergency Disaster Treatment Protection Act 2020 was passed to provide temporary immunity from criminal and civil liability to healthcare professionals during the state of emergency. Closer to home, we highlighted in our June article that provisions built into The Corporate Manslaughter Act 2005 appear intended specifically to preclude a corporate from committing the offence where it is acting in “emergency circumstances”, the definition of which will arguably be satisfied at the point at which an NHS provider becomes forced to make decisions over allocation of resources through no fault of its own. Similar changes to the law have already been provided for by HM Government in The Coronavirus Act 2020 to indemnify against civil liabilities.
Call for emergency legislation rejected
Despite the objective reality that clinicians in the NHS are already being required to make decisions about resource allocation that directly impact patients and patient outcomes, the Secretary of State confirmed on 18 January 2021 that the Government had no plans to change the law to expressly provide clinicians with a safeguard from criminality.
Asked by The BMJ about the call for new legislation on 18 January, the SoS said, “I am very glad to say that we are not in a position that doctors have to make these sorts of choices and very much hope that we don’t get into that situation. It is not necessary at this point to change the law on this matter.”
But what about medical manslaughter?
In our June article, we explored the possibility that an individual clinician may find themselves facing a charge of gross negligence manslaughter because of one or more decisions made during the national healthcare crisis. We still think it unlikely that a decision made in good faith and in exceptional circumstances beyond a clinician’s control during the pandemic is unlikely to constitute a failure so gross as to be criminally negligent and so, unlikely to satisfy the legal test for gross negligence manslaughter.
We are also of the view that it is unlikely to be in the public interest for the Crown Prosecution Service to bring a prosecution in such circumstances. Not only would it fly in the face of unprecedented levels of support from the public for NHS workers, but the response from healthcare professionals to the decision would likely impact on frontline decision-making in a wholly negative way.
Despite this, we recognise that the value of peace of mind and certainty in matters as serious as criminal liability cannot be overstated. Since concerns about prosecutions of healthcare professionals within the profession were already high even before the pandemic, having to rely on individual police officers and prosecutors making decisions on a case by case basis is unlikely to offer frontline clinicians much reassurance.
A changing coronial landscape
It is also worth noting that findings of unlawful killing are not restricted to the criminal courts, and recent developments in coronial law following the Supreme Court’s decision in Maughan have changed the playing field at inquests. The Maughan judgment means that now, a coroner or her jury need only be satisfied that a homicide offence has caused a death ‘on the balance of probabilities’ in order to return a conclusion of unlawful killing. Although no criminal liability attaches to a conclusion in an inquest, it may still have consequences for the clinician implicated by the underlying facts, including triggering a criminal investigation or a review of any charging decisions made prior. Not only that, but the public may fail to appreciate the legal significance of the reduced standard of proof now at play at an inquest when the outcome is reported by the media.
The changes brought about by Maughan arguably make the case for statutory protection from criminality even greater, since any such provision would have to be considered by a coroner or her jury alongside the offence to which it applied.
‘Vacuum of guidance’
In the absence of an express statutory provision to safeguard healthcare professionals from criminality, national guidance published by the Department of Health and Social Care and NHS England that is specifically intended to provide a framework for decision-making by frontline clinicians during the pandemic, particularly in relation to resource allocation and life-saving patient care, may go some way to alleviating the concerns of clinicians, since clinicians making decisions in accordance with a lawful national policy should by doing so avoid criminality or wrongdoing.
Regrettably, no central guidance for clinical decision-making has been forthcoming. Local policies have been introduced by some providers and certain representative bodies, such as the BMA Ethics Committee, RCP and GMC have published guidance for their members. These will likely offer some reassurance and assistance for those to whom they apply, but a de-centralised approach, whilst better than nothing, is not without issue. For example, there is the potential for variation between publications, which could exacerbate conflicting opinions and at worst result in unlawful variations in approach between regions. This could undermine the value of the policy as a tool for lawful decision-making and so as a safeguard for clinicians relying on it to make and justify decisions. There is also the reality that such guidance or policies are unlikely to carry the same weight as would national guidance from DHSC or NHSE such that the level of reassurance they offer clinicians is also likely to be reduced.
Comment
Listening to those on the frontline, it is clear that decisions about patient care based on resource allocation are already being made on a daily basis. Whilst existing laws may ultimately prove adequate at preventing unjust or unfair criminal charges being brought against frontline clinicians for decisions made in good faith during the crisis, it appears clear that they do not work to provide them with adequate peace of mind. In the absence of changes in the law to introduce new statutory protection, national guidance for frontline clinicians to provide a framework for decisions on resource allocation and prioritisation of patient care becomes even more important, in terms of ensuring consistency in approach across regions, to provide clinicians who follow it in good faith with peace of mind and to better safeguard them from potential criminality or wrongdoing.
[1] https://coronavirus.data.gov.uk/details/healthcare
About the authors
Duncan Astill, Partner
Duncan specialises in regulatory enforcement action. He leads the regulatory team which supports clients through a wide variety of public law disputes, regulatory investigations and enforcement action.
Sam Lindsay, Senior Associate
Sam is a solicitor in the regulatory and healthcare team. He works with Mills & Reeve’s public and independent sector clients on regulatory and public law issues. His practice includes contentious and non-contentious matters and spans a number of industry sectors with a particular expertise in health and care.