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EMERGING RISK

A call on the Government to provide legal protection for doctors facing difficult decisions during the COVID-19 pandemic

Amid this second wave of the COVID-19 pandemic and the considerable additional pressure on the NHS, there have been calls on the government, on behalf of UK doctors, to provide immunity from criminal prosecution for actions during the COVID-19 pandemic

In a joint letter to the Secretary of State for Health, Matt Hancock, a group of organisations representing the medical profession has asked the government to introduce temporary emergency legislation, which would apply retrospectively from the start of the pandemic.

Whilst this is an extraordinary step, asking the government to provide protection for doctors against potential charges of unlawful killing and “inappropriate” legal action, it is in response to genuine concerns that hospitals and healthcare staff are being overwhelmed, and that doctors may be forced to make difficult decisions regarding whether a patient should receive life-sustaining care when allocating limited resources.

The group of medical bodies stressed in their letter to the government that existing guidance for doctors and nurses on when to administer or withdraw treatment does not give legal protection or consider the unprecedented circumstances of the pandemic, where demand for healthcare may outstrip supply.

It has been highlighted to the government that “The first concern of a doctor is their patients and providing the highest standard of care at all times”. Doctors already shoulder a heavy burden in making decisions surrounding the allocation of scarce resources in the context of limited capacity.

The government’s initial response to this recent call for protection has been to reiterate that NHS staff should not have to fear legal action, but a substantive response is awaited.

The GMC has already acted to reassure doctors during the pandemic by publishing guidance for their decision-makers on how they will take the context created by COVID-19 into account when considering complaints about doctors (GMC COVID-19 specific guidance, ‘COVID-19’: assessing the risk to public protection posed by a doctor as a result of concerns about their practice during the pandemic’ dated September 2020). However, whilst this is reassuring in respect of a regulatory investigation where a doctor’s fitness to practise is being assessed, this has no relevance to whether a doctor is subject to a criminal investigation or prosecution.

Whilst the government’s response to the issue develops, the importance of keeping clear contemporaneous records should never be underestimated and is of particular significance during the current pandemic. You should ensure the reasons for your clinical judgements and decisions are clearly and fully recorded, so that, if in the future, you are asked about the care and treatment you provided, you can confidently rely on your records as an accurate representation of the particular situation you were faced with at the time. You should also include any factors which may have been out of your control but were relevant to your decision-making.

Doctors insured by PMP should be reassured that expert legal advice, support, and assistance is available to you 24/7 via the medicolegal helpline.

Claire Petts
Partner, Clyde & Co LLP
claire.petts@clydeco.com

Information correct at time of publication 4 February 2021

Clyde & Co LLP and Premium Medical Protection Ltd accept no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, reading or otherwise without the prior permission of Clyde & Co LLP. © Clyde & Co LLP 2021.

Premium Medical Protection Ltd. are an appointed representative of Harley Street Insurance Group Limited, which is authorised and regulated by the Financial Conduct Authority FRN 570717. Registered in England and Wales, Company Registration Number: 07098260. Registered Office: 25 Athena Court, Athena Drive, Tachbrook Park, Warwick, England, CV34 6RT. Insurance is underwritten by Berkshire Hathaway International Insurance Limited, which is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority FRN 202967 and the Prudential Regulation Authority.

ER EMERGENCY LEGISLATION CP 04/02/2021 v1

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