Legal issues arising out of Medical Priority…

A detailed article on the legality of doctors making decisions about who should and should not get access to critical care facilities in the current pandemic. Sobering reading but these are decisions that are made by doctors today - and it is important they know it is lawful to do so.

Background.

1. The current phase of the pandemic is presenting profound challenges for all parts of the NHS. Over 1,000 people a day are dying of Covid-19 and there is a new and more virulent strain at large. The country is in lock-down and the only hope for return to normality is a mass vaccination programme using one of the (now) 3 approved vaccines. But the challenges of the logistics of delivering that type of vaccination programme cannot be under-estimated, as well as securing the vaccines on such a mass scale.

2. Heroic efforts have been made to expand services since the start of the pandemic so far as possible, that as many seriously ill patients as possible will receive a clinically appropriate service to existing standards. New facilities have been developed, known as Nightingale Hospitals. These were originally designed specifically to provide support to Covid-19 patients, and in particular to provide respiratory support including ventilators. But these hospitals lay largely unused in the first and second waves, and staffing them when the rest of the NHS is under such strain may be an insurmountable problem.

3. The hope of everyone in the NHS (as elsewhere) is that demand for NHS services does not result in services being overwhelmed by a combination of Covid-19 patients and patients suffering from other urgent medical conditions so that care has to be rationed more than is usual within the NHS.

4. However, the progress of the pandemic means that demand for critical care services from a combination of Covid-19 patients and patients suffering from other urgent medical conditions is becoming greater (and possibly substantially greater) than the resources available to the NHS to provide those services (even taking account of expanded critical care resources in hospitals and the proposed Nightingale Hospitals).

5. NICE has now published guidance on decision making concerning access to critical care[1]. This appears to suggest that NICE recommend that patients over 65 with a Clinical Frailty Score of 5 or more should be admitted to critical care. Whilst that Guidance may assist clinicians in some circumstances, it does not address the problem as to what decisions should be made if, using their decision making tool, more patients need critical care beds than the number of available critical care beds. There is now professional Guidance that assists clinicians from:

a. The Ethics Committee of the doctor’s trade union, British Medical Association[2];

b. The Royal College of Physicians[3]; and

c. The General Medical Council[4].

6. This paper will focus in particular on decision-making concerning patients who need critical care since the range of services available in critical care is a crucial resource for Covid-19 patients. NHS critical care wards have a supply of ventilators used to support patients with breathing difficulties but other drugs, such as dexamethasone and hydrocortisone are proving more effective[5]. A wide variety of different medical conditions can affect a patient’s ability to breathe successfully and thus the provision of breathing support from a ventilator can be a part of the treatment plan for a wide variety of ITU patients. Whilst all these existing conditions can be anticipated to continue to create a demand for breathing support for patients from a ventilator, the clinicians anticipate that they will be a substantial demand for ventilator support for Covid-19 patients. In circumstances where the number of patients who need support from a ventilator is greater than the number of ventilators, there is a widespread concern to ensure as far as possible that fair decisions are made in a consistent manner by doctors to decide which patients should be allocated life-saving or life-supporting NHS, including respiratory support, and how long such support should be provided. I accept that, in the envisaged circumstances, it is inevitable that the most difficult decisions will have to be made as to which patients are given the benefit of ventilator treatment (and for how long) and which are denied that opportunity.

7. If this situation arises, staff in NHS bodies will have to make difficult decisions about who gets access to life saving treatment and who is denied such treatment. It would assist those bodies to make lawful and legally consistent decisions if those making these decisions were to be provided with a clear framework to explain how such decisions should be taken. Assuming these circumstances arise, the dilemma for those in the NHS front line will not be “whether” these terrible types of decisions will need to be made but “how” these decisions should be made and whether any proposed decision making system will be lawful.

The Guidance.

8. NICE is the only “official” guidance which NHS bodies have a legal duty to follow. However, it states at paragraph 3.2:

“Review critical care treatment regularly and when the patient's clinical condition changes. Include in the review an assessment of whether the goals of treatment are clinically realistic.

For support with decision making, see ethical guidance from the British Medical Association, the Royal College of Physicians and the General Medical Council. [amended 9 April 2020] [amended 9 April 2020”

9. The remaining guidance is authoritative professional guidance produced by other bodies which is, in effect, incorporated by reference into the NICE Guidance. The RCP Guidance states:

“Prioritising ITU beds and resources

“ITU beds, in fact all hospital beds and resources, should continue to be allocated based on appropriate assessment methods. This assessment should be continual as new cases present, to ensure that those patients in most need of care are continually prioritised and cared for. As is always the case in critical care, there will be some patients (with or without confirmed COVID-19) for whom admission to ITU would be inappropriate. National Institute for Health and Care (NICE) guidance on how to assess these patients for care during the pandemic has been issued and can be found here”

10. This is useful but non-specific guidance. The BMA guidance is perhaps clearer. It says:

“Although doctors would 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 is expected to benefit more from the available treatment”

11. One part of the Guidance which has caused some concern relates to triage. It provides:

“Triage

If services are overwhelmed during this pandemic, health providers will put in place – or expand – systems of triage. Triage is a form of rationing or allocation of scarce resources under critical or emergency circumstances where decisions about who should receive treatment must be made immediately because more individuals have life-threatening conditions than can be treated at once. Triage sorts or grades persons according to their needs and the probable outcomes of intervention. It can also involve identifying those who are so ill or badly injured that even with aggressive treatment they are unlikely to survive and should therefore receive a lower priority for acute emergency interventions while nonetheless receiving the best available symptomatic relief.

It is possible we could reach a point where the decisions made in triage will determine whether potentially large numbers of individuals will receive life-saving treatment or not. It is essential therefore that the principles underlying the decisions are systematically applied. In these circumstances it is likely that priority will ordinarily be given to those whose conditions are the most urgent, the least complex, and who are likely to live the longest, thereby maximising overall benefit in terms of reduced mortality and morbidity. Priority decisions will be dependent upon the relationship between the availability of resources and the demand. If serious depletion of resources arises, decisions about which patients should receive treatment will change over the course of the pandemic”

12. The unfortunate need to achieve the most effective outcomes by allocating medical resources to those who can most benefit from them was confronted in the following passage:

“The presence of co-morbidities that are known to be associated with lower survival rates may exclude individuals from eligibility. In these circumstances, it may be necessary to discontinue treatment that has already been started, as there are patients in need whose outcomes are likely to be more favourable. Grave and difficult decisions will arise where strenuous intervention could reduce mortality significantly but would mean that individual patients use resources that could lead to better outcomes for a larger number of other patients”

13. This was repeated in the following position concerning Medical Utility:

“To maximise benefit from admission to intensive care, it will be necessary to adopt a threshold for admission to intensive care or use of scarce intensive treatments such as mechanical ventilation or extracorporeal membrane oxygenation. Relevant factors predicting survival include severity of acute illness, presence and severity of clinically relevant co-morbidity and, again where clinically relevant, other factors which reduce the likelihood of recovery, or of surviving complex and demanding treatment. These may include, where directly linked to their clinical ability to benefit from a treatment, the patient’s age.7 Those patients whose probability of dying, or of requiring a prolonged duration of intensive support, exceeds a threshold level would not ordinarily be considered for intensive treatment, though of course they should still receive other forms of medical care”

14. The balance between withholding and withdrawing potentially life-saving treatment is also confronted head-on by the BMA Guidance which states:

“Withdrawing or withholding treatment?

There is likely to be significant ethical attention to decisions about withholding therapies from patients at the time of deterioration. However, there is no ethically significant difference between decisions to withhold life-sustaining treatment or to withdraw it, other clinically relevant factors being equal – although health professionals may find decisions to withdraw treatment more challenging.8 There may be a need to make admission to intensive care or commencement of advanced life-support conditional upon response to treatment, for example, drawing on the concept of a time-limited trial of therapy.9 In the setting of overwhelming demand, if patients’ prognosis worsens after admission to intensive care – sufficiently that, if it had been the case prior to admission, the treatment would not have been commenced – it should be withdrawn and the same facility offered to another patient reasonably believed to have the capacity to benefit quickly.10Depending upon the nature of the pandemic, there may be a need during its progress to shift from one level of service rationing to a more or less severe one, the details of which should be set out by management in protocols. The WHO talks about the ‘phasing’ of a pandemic, with different phases requiring different decision-making criteria”

15. The engagement of disabilities and other protected characteristics is considered in the BMA Guidance. It provides:

“We recognise the extremely challenging and distressing nature of these decisions, both for those affected by them, and for those forced to make them. It is essential that these decisions are based upon clinical factors related to outcome, and not, for example, on the basis of discriminatory judgments about the value or worth of individual lives. Similarly, health conditions or impairments unrelated to capacity to benefit clinically must not be used to guide decision-making. The presence for example of a learning disability would almost certainly not be a clinically relevant factor. Similarly, a simple ‘cut-off’ policy with regard to age or disability would not only be unethical, but also unlawful as it would constitute direct discrimination. A healthy 75-year-old cannot lawfully be denied access to treatment on the basis of age. However, older patients with severe respiratory failure secondary to COVID-19 may have a very high chance of dying despite intensive care, and consequently have a lower priority for admission to intensive care”

16. Accordingly, the BMA Guidance proposes a framework for clinical decision-making in a pandemic which allocates resources in the way which delivers the maximum benefit to the maximum number of patients even though that recognise the inevitability that some patients will get sub-optimal treatment. This might be inevitable but it will no doubt be hugely distressing for patients, their families and NHS staff. No one comes into the NHS to give sub-optimal treatment to patients.

17. However, even if this may seem inevitable, individual clinicians and NHS bodies are likely to be worried as to whether this Guidance is lawful and whether following it will lead to legal action taken by disgruntled relatives of those who have fallen on the wrong side of the line.

Is it lawful to have a resource allocation decision making policy of the type envisaged?

18. In order to answer the question “will it be lawful to ask clinicians to make these types of decisions”, it is necessary to go back to the basics of NHS law. The Secretary of State and NHS England have a duty to promote a comprehensive health service: see sections 1 and 1H of the National Health Service Act 2006 (“the NHS Act”). However, this is a legal duty to promote such a service, not a duty to provide such a service. The Court of Appeal has long recognised that, both because medical services are funded by taxation which delivers finite funds and for other reasons, there have always been limits to the range of medical services that the NHS can provide and hence a “comprehensive health service” will never be delivered in practice: see R v North and East Devon Health Authority ex p Coughlan [2001] QB 213. This duty was described as being a “time unlimited aspirational target” by the Court of Appeal in R (BA) v The Secretary of State for Health and Social Care [2018] EWCA Civ 2696 at §62, which means in effect that a breach of that duty would be very hard to prove.

19. Clinical commissioning groups (“CCGs”) are not under a legal duty to promote a comprehensive health service. Instead, CCGs owe a target legal duty to make arrangements under section 3(1) of the NHS Act to enable NHS patients to access medical and other services. Section 3(1) provides:

“A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility—

(a) hospital accommodation,

(b) other accommodation for the purpose of any service provided under this Act,

(c) medical, dental, ophthalmic, nursing and ambulance services,

(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children [as the group considers] are appropriate as part of the health service,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness [as the group considers] are appropriate as part of the health service,

(f) such other services or facilities as are required for the diagnosis and treatment of illness”

20. The NHS is used to dealing with financial constraints on its ability to provide treatment in circumstances where resources are required to fund other treatments. Thus, NHS bodies have to make choices about which patients can have access to which NHS funded medical treatments and, to guide these choices, CCGs and NHS Trusts have adopted policies which set priorities between different types of treatment. The inevitable consequences of such policies are that patients who do not have sufficient priority are denied NHS funded treatment despite having a medical need for that treatment and thus, in practice, are denied medical treatment which could save their lives or improve the quality of their lives.

21. The legality of the limitations on the supply of NHS services came before the Court of Appeal in 2 cases in 1988. The second of these cases, R v Central Birmingham Health Authority ex parte Collier [1988 WL 1608598] concerned a child that desperately needed open heart surgery and was at the top of the waiting list. However, due to an absence of critical care beds and intensive care nurses required for after-care treatment in Birmingham, the child’s operation was cancelled on no less than three occasions and had still not been carried out by the date of the hearing as there was no bed in intensive care available. The claim for judicial review of the Health Authority to challenge the failure to provide this life saving operation failed. The Court said:

“It is not for this court, or indeed any court, to substitute its own judgment for the judgment of those who are responsible for the allocation of resources. This court could only intervene where it was satisfied that there was a prima facie case, not only of failing to allocate resources in the way in which others would think that resources should be allocated, but of a failure to allocate resources to an extent which was ‘ Wednesbury unreasonable’, to use the lawyers' jargon, or, in simpler words, which involves a breach of a public law duty”

22. The legality of NHS resource based rationing was also confirmed in R v Cambridge Health Authority ex parte B [1995] 1 WLR 898. In that case a father sought NHS funding for experimental treatment for a child’s acute lymphoblastic leukaemia. The proposed treatment was estimated to have a 10% to 20% chance of success. The Health Authority refused to fund on the ground that it was experimental and had insufficient chances of success to justify public funds being expended to support it. The Health Authority lost the case at the High Court but that decision was overturned by the Court of Appeal. The Judge noted the seriousness of the issues saying at 944/5:

“ … this is a case involving the life of a young patient and that that is a fact which must dominate all considerations of all aspects of the case. Our society is one in which a very high value is put on human life. No decision affecting human life is one that can be regarded with other than the greatest seriousness”

23. The Judge then dealt with the core issue in the case, namely the Health Authority’s approach to the use of its resources. He said:

“The third criticism that is made by the judge is of the reference to resources”

24. Then, in a seminal passage, the Judge explained the roles of the Health Authority (now the CCG) and the court as follows:

“The judge acknowledged that the court should not make orders with consequences for the use of health service funds in ignorance of the knock-on effect on other patients. He went on to say that “where the question is whether the life of a 10-year-old child might be saved by however slim a chance, the responsible authority … must do more than toll the bell of tight resources.” The judge said: “It must explain the priorities that have led it to decline to fund the treatment,” and he found it had not adequately done so here.

I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court.

Mr. McIntyre went so far as to say that, if the authority has money in the bank which it has not spent, then it would be acting in plain breach of its statutory duty if it did not procure this treatment. I am bound to say that I regard that submission as manifestly incorrect. Unless the health authority had sufficient money to purchase everything which in the interests of patients it would wish to do, then that situation would never ever be reached. I venture to say that no real evidence is needed to satisfy the court that no health authority is in that position” [emphasis added]

25. Thus, the approach of the Cambridge Health Authority in denying funding for the treatment was held to be lawful[6]. The approach taken by the Court of Appeal in that case was specifically approved by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [2014] AC 591 at §18.

26. In the Cambridge Health Authority case, the constraining factor was money. However, the court’s judgment is expressed in relation to constraints on the NHS’s ability to make the best use of its “resources”, not just its money. It follows that the same principles concerning making the best use of limited resources should apply regardless as to whether the constrained resource is money, equipment, hospital beds or another limited resource such as the availability of donated organs for transplant. That was confirmed in R (BA) v The Secretary of State for Health and Social Care [2018] EWCA Civ 2696 where NHS rules made by the Secretary of State in Directions prioritising donated organs for those lawfully resident in the UK were challenged. The Court said at §67:

“As Coughlan makes clear, in exercising her discretion under section 3(1) of the 1977 Act the scarcity of resources was a major consideration for the Secretary of State (and would have been for CCGs if the responsibility for the allocation of organs for transplantation rested with them under equivalent provisions in section 3(1) of the 2006 Act). Organs for transplantation are in short supply”

27. Rationing decisions can also lawfully be made by hospitals as Chamberlain J explained in the recent case of University College London Hospitals NHS Foundation Trust v MB (Rev 1) [2020] EWHC 882 (QB) who explained at §55 that NHS hospitals are entitled to take public law rationing decisions just as these decisions can be taken by NHS commissioners. The Judge said:

“In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even ceasing to provide in-patient care to one of them to leave will certainly cause extreme distress or will give rise to significant risks to that patient's health or even life. A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A's clinical need is greater than B's, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B. This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, "[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority's allocation of finite funds between competing demands". Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds. In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person”

28. It follows that, it is potentially lawful for CCGs (who now exercise NHS commissioning responsibilities under section 3(1) of the NHS Act in place of the Secretary of State or Health Authorities) to ration access to NHS care so that limited NHS resources can best be “allocated to the maximum advantage of the maximum number of patients” (as per Lord Bingham in the Cambridge Health Authority case). I say “potentially lawful” because the lawfulness of decision making and successfully defending it from legal challenge will be improved by the following:

a. Any decision making policy would be best reduced to writing so it is clear;

b. It should be the subject of advance public engagement (albeit truncated due to the present pandemic crisis), and

c. The decision to adopt such a policy should be considered and approved by the Boards of the relevant CCG and the NHS Trust provider organisations based on a clear rationale developed by the clinicians who have to adopt such a policy.

The effect of human rights legislation.

29. The United Kingdom is a signatory to the European Convention on Human Rights (“the ECHR”) and, as a result of section 6 of the Human Rights Act 1998, all public bodies have a legal duty to act in accordance with the human rights of UK citizens.

30. A decision by an NHS body to deny a patient a potentially beneficial medical treatment will usually mean, in practice, that the patient is denied the treatment because, even if the patient had their own money to buy the same service outside the NHS, such a service will not be readily available. That issue has given rise to claims that any denial by the NHS of access to any form of treatment constitutes a breach of an individual’s human rights (namely the positive duty on the state under articles 2, 3 and/or 8 ECHR).

31. As far as I am aware, none of these human rights claims against the NHS have succeeded on human rights grounds alone. The reason is that decisions by member states of the Council of Europe as to the amount of money allocated to national healthcare systems vary enormously. There is no common standard or healthcare provided by member states to the Council of Europe. That lack of a common standard has led to a series of cases before the European Court of Human Rights (“ECtHR”) where parties have attempted to argue that inadequate state funded health care services have breached their human rights, but all of these cases have failed because the state’s limited positive duties under the ECHR have not been engaged by such an approach.

32. That approach has been replicated in the UK courts. An appeal against an NHS rationing decision on human rights grounds was rejected by the Court of Appeal in R (Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910 [2012] PTSR 460[7]. In that case the Court referred to a series of ECtHR cases where attempts to argue that resource allocation decisions by state health care bodies breached the human rights of patients including cases such as Sentges v Netherlands, no 27677/02, 8 July 2003; Pentiacova v Moldova, no 14462/03, 4 January 2005; Tysiac v Poland (2007) 22 BHRC 155. It is possible that a human rights claim could be maintained based on discrimination under article 14 ECHR. However, the UK has a complete code relating to equality matters under the Equality Act 2010 and it is difficult to see any set of facts where a discrimination claim could fail under the Equality Act but nonetheless succeed under article 14 ECHR. Thus, if a resource allocation policy is lawful at UK common law, it is highly likely to be lawful under human rights law.

Will doctors or NHS Trusts be exposed to negligence claims if they follow such a policy?

33. Some lawyers have suggested that there may be difficulties in reconciling the lawfulness of rationing decisions, which will result in patients being denied medical treatment which would be likely to be beneficial to the patient, with the duty of care owed by treating doctors to their patients. The question can be posed by asking “How can doctors not act negligently if they make decisions which result in their patients having sub-optimal medical treatment?”

34. The answer to this conundrum is to recognise that clinicians working in the NHS can simultaneously make decisions as a doctor who owes a private law duty of care to a patient and as a public law decision maker who has to take decisions on the basis of rationed resources. Every GP who has a patient who needs IVF treatment in order to conceive a child faces this issue. It may be in the best interests of the patient to be referred to a specialist clinic for IVF treatment but, in many CCG areas, IVF treatment is subject to strict rationing criteria (if it is available at all). An NHS GP is constrained by his or her duties as an NHS decision maker to limit the clinical options available to the patient to those which are approved under NHS commissioning policies. Hence if, for example, the CCG has an age cut off of 40 and the patient is 41, the GP will not be able to refer the patient for NHS funded IVF treatment even though such treatment is in the patient’s best interests[8].

35. However, healthcare rationing does not only take place within primary care. Critical care doctors are constantly assessing the relative priority of the needs of patients for critical care facilities, with patients being moved in to and out of critical care at times when a calculated risk based decision can be made that a critical care bed is required for the patient with a greater level of need. There may well be arguments that it is in the best interests of the patients not to be moved out of critical care but to remain there, but decisions are nonetheless made on a daily basis on the basis of which patients has the greater need for critical care beds. Where decisions are made after a properly thought out resource based rationing process, a doctor should not be liable in negligence (or this would be a daily event for critical care consultants).

36. The legal analysis of the intersection between public law rationing decision-making and the law of negligence has been described in various different ways in the cases. These issues are summarised correctly in an academic text “Who should we treat” by Professor Chris Newdick (OUP: 2005). At page 187 Professor Newdick addressed this issue in a chapter entitled “Are negligence standards resource dependant?” In summary, the answer to that question given by Professor Newdick is “Yes”.

37. In order to understand the legal history relied upon by Professor Newdick, reference must be made to Knight v Home Office [1990] 3 All ER 237 where a negligence claim failed based on the argument that the same standard of care applied to prison as to psychiatric hospitals. The court held that the primary function of the prison was to detain the inmates and, although the prison was required to care for physically and mentally ill prisoners, it could not be expected to provide the same degree of care as hospitals outside. Thus, according to the standards of care possible within the resource constraints of a prison, there was no evidence that the prison doctors were negligent in their care of the claimant even though different considerations might have arisen if the same care had been delivered in an NHS hospital[9].

38. The court in that case recognised that the standard of care expected to be delivered by those with a duty of care depended on policy decisions about the level of resources available to the public service provider. That principle was followed in a series of subsequent cases including King v Sussex Ambulance Service NHS Trust [2002] ICR 1413 where Hale LJ (as she then was) was concerned to identify what were the “reasonable steps” that a person was required to take in order to discharge a duty to take reasonable care. She said:

“It does mean that what is reasonable may have to be judged in the light of the service's duties to the public and the resources available to it to perform those duties: as Colman J put it in Walker v Northumberland County Council [1995] ICR 702 , 712:

“The practicability of remedial measures must clearly take into account the resources and facilities at the disposal of the person or body owing the duty of care … and the purpose of the activity which has given rise to the risk of injury.”

39. That approach has been followed in a series of further cases where the scarcity of resources has been held to adapt the duty of care owed to a person who suffers harm: see for example Humphrey v Aegis Defence Services Ltd and another [2017] 1 WLR 2937. Thus, the duty on the doctor to act reasonably will be affected by the resources available to the doctor and, by definition, on the calls on those resources for other patients. It is thus not, in principle, a breach of the doctor’s duty to patient A to take a lawful NHS rationing decision to prefer to provide resources to patient B thereby depriving patient A of the opportunity to access treatment. If the critical care bed can only be occupied by A or B, a choice has to be made. Neither patient can ask the doctor to provide care using resources which are not available to the doctor.

40. That reasoning is buttressed by the strand of cases which have held that a right to make a claim in damages cannot be established where the person undertaking the decision making function is acting as a public law decision maker: see O’Rourke v Camden LBC [1998] AC 188. As a matter of principle, the general position is that a public law decision maker who takes a decision based on a rational policy which allocates treatment based on a fair allocation of NHS resources as between different patients cannot be liable in private law negligence for failing to provide a service to an individual patient with resources at a greater level than afforded by the public law decision. The reason is that a breach of public law duties does not, of itself give rise to any liability for damages. However, the other side of the coin is that it cannot be “reasonable” to expect a doctor or other clinical professional to provide additional medical resources to a patient over and above that which the public law allocation decision has lawfully determined should be provided to a patient. Thus a doctor who makes or implements a lawful public law rationing decision should not find himself or herself in breach of any private law duty of care to a patient who is adversely affected by that lawful decision.

Equality considerations.

41. In addition to complying with its public law obligations, in order to act lawfully, an NHS organisation is required to comply with its obligations under the Equality Act 2010 (“the EA”). In summary, NHS organisations are required to ensure that they do not unlawfully discriminate against individuals based upon any protected characteristic. Equality law generally means treating equal persons equally, and treating people who are not equal in different ways. Any decision making process involving decisions about who gets access to healthcare services will, by definition, have patients who get comparative advantages and those who do not – sadly there have to be “winners and losers”. It is important not automatically to equate every disadvantage suffered by a person with a protected characteristic as amounting to a valid claim of discrimination.

42. For example, as the NICE Guidance makes clear (and is commonplace for anyone working in critical care), many elderly or disabled patients who have relevant respiratory conditions which would, entirely outside of the present pandemic and applying normal critical care decision making, mean that they will not be viable candidates for ventilation support because of their very poor prognosis and/or because of the limited chances of ever being able to wean such patients off ventilation. Thus, any decision making system for Covid-19 patients and others needing respiratory support has to start with the present medical reality that many elderly and/or disabled patients would not be offered a ventilator if they developed any form of virus which led to breathing difficulties because of their underlying conditions. This existing decision making approach could be seen to be disadvantageous to the elderly (and thus engage the protected characteristic of “age”) or the disabled (and thus engage the protected characteristic of “disability”). However, such an approach would not necessarily amount to “discrimination” under the EA because such an approach is likely to be objectively justifiable[10]. However, a simple cut off which stated that patients above a certain age or with defined disabilities would not be provided with critical care facilities would be unlawful.

43. A policy to allocate critical care facilities to patients who were clinically assessed to be most likely to benefit quickly in any case where patient need for services exceeded the availability of resources to deliver those services would be brought in by a CCG and NHS Trusts in order to ensure that limited medical facilities would be used to the benefit of the maximum number of patients and thus would lead to the highest number of lives being saved. However, if that policy were to be adopted, it is likely to result in disadvantages for a higher number of disabled people and the elderly. It is thus necessary to consider whether it would constitute unlawful indirect discrimination.

44. Indirect discrimination is defined by s13(1) EA as follows:

“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's”

45. However, s13(2) EA provides:

“For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim”

46. The recent case of R (Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 (“Steinfeld”) approved the following approach to indirect discrimination (outside cases involving discrimination on grounds of sex and sexual orientation):

a. The burden of proving justification is on the party alleging that the policy is justifiable, in this case the CCG: R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, per Lord Wilson at para 44 and Lady Hale at para 61;

b. It is not the policy or scheme as a whole which must be justified but its discriminatory effect: A v Secretary of State for the Home Department [2005] 2 AC 68 per Lord Bingham at para 68 and AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434 per Baroness Hale at para 38; and

c. The conventional four-stage test of proportionality (as outlined in cases such as Bank Mellat v HM Treasury (No 2) [2014] AC 700 and R (Tigere) v Secretary of State for Business, Innovation and Skills (Just For Kids Law intervening) [2015] 1 WLR 3820, at para 33) should be applied.

47. In this case the discriminatory effect would be that the elderly or disabled would be less likely to qualify for critical care support because of their lower health status and thus they were unable to benefit as quickly from critical care support as those with a higher health status. It is that discriminatory effect which has to be justified by the need to apply NHS resources to those who could benefit most and thus save more lives. That, in my view, is potentially justifiable basis to support the policy as it seeks the laudable objective of saving the maximum number of lives in the way explained by Lord Bingham in the Cambridge Health Authority case.

48. Discrimination in access to healthcare engages ECHR qualified convention rights (notably under article 8) and the four-stage test designed to establish whether an interference with a qualified convention right can be justified is now well-established. As Lady Hale explained in Steinfeld:

“The test and its four stages were conveniently summarised by Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para 45. They are (a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?”

49. Ensuring that limited medical facilities are used to the benefit of the maximum number of patients and thus maximise the number of lives saved is, in my opinion, plainly a “legitimate aim” which satisfies the first limb of the test. An allocation policy which allocates critical care on the basis of health status is also rationally connected to this aim and so the second test is satisfied. In determining whether the policy is “no more than are necessary to accomplish” the objective, account has to be taken of the other ways in which resources could be allocated to save lives. In this context,[11] it may be worth observing that anyone challenging a decision making system would have to face the problem of showing that there was another resource allocation system which would be fairer to all patients than allocating resources on the basis of health status. All other allocation systems, such as queuing or randomly allocating resources by lot, appear to result in a greater loss of life. Thus, this part of the test is likely to be satisfied. Finally, I consider that, despite the discriminatory effect that such a decision making system would have on the ability of the elderly and the disabled to access critical care services, it seems to me that the lack of any workable alternative allocation system means that the proposed system is likely to be held by a court to represent a fair balance between the rights of the individual and the interests of the community.

Reasonable Adjustments.

50. Entirely separate from the duty not to discriminate, there are positive duties in the Equality Act 2010 to advance the interests of persons who have disabilities. The duty to make “reasonable adjustments” for disabled persons applies to both the CCG and to NHS provider Trusts: see section 29 EA.

51. The duty comprises three parts set out at section 20 EA, namely:

“(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid”

52. The first and third elements are potentially engaged by a policy to define who gets treated and who does not. It will be important for anyone drafting a policy to consider carefully with the relevant clinicians the extent to which, if at all, the policy could be adapted to lessen the disadvantages suffered by disabled persons who need critical care facilities. There may be substantial difficulties in any adjustment to the policy to change decision making to favour those with disabilities for a number of reasons, primarily that it may well be that many disabled people will not be disadvantaged by the policy since their chances of benefitting from securing critical care support are no less than someone without disabilities. Patients with long term mental health problems, learning difficulties or with a disability that does not impact on their respiratory functions may well have just the same level as potential benefit as those without disabilities.

53. Conversely where a disabled person’s disablement may affect the ability of the patient to benefit from ventilation, the patient may never have been a candidate for ventilation in the first place. Where a disabled patient has respiratory problems but, prior to Covid-19 may nonetheless have been a candidate for ventilation if he or she developed breathing problems, it may be that doctors will assess that such a patient will probably need longer (and possibly far longer) on ventilation before the patient could be weaned off a ventilator.

54. Whilst it may be possible to build in some “reasonable adjustment” to a policy to favour such a patient, there may be difficulties with such an approach for two reasons. First, there appears to be no reliable body of data to assist doctors in judging how much extra support disabled patients with a reduced capacity to benefit from ventilation would need or how much longer on ventilation such patients would need for the same average benefit. That will vary from patient to patient and, in any event, is largely unknown. It may be that making any form of adjustment (save possibly at the margins) is unworkable.

55. Secondly, the longer that any patient was maintained on a ventilator, the more other patients may suffer from not securing access to that resource. Thus, any extension of rights for a disabled person is not neutral for the remainder of the population but may prejudice the rights of other patients. It may be that the most that any policy could do is to remind clinicians at both the granting access stage and removal of treatment stage that, where the patient is disabled, to consider whether the case is “marginal” and thus whether, given the other pressures on resources at that time, some adjustment should be made to provide extra time or support for such a patient.

Is a trial of treatment lawful?

56. One practical problem is whether it is lawful for a doctor to say to the patient or relatives (if the patient lacks capacity) that the NHS will give the patient a trial of ventilation or a critical care bed but if, after a certain period, the patient is either (a) deteriorating beyond the point we would expect on this treatment or (b) stable but not making progress at the rate we would expect or (c) improving but not quickly enough, that the NHS may remove them from the ventilator or critical care bed in order to give that ventilator to someone else who in our clinical opinion could benefit faster? The answer is that this ought to be lawful. It would be better if it this follows a decision making process set out in an agreed NHS policy, but as long as there is another patient who needed the ventilator or could be expected to do so, I consider that it would be lawful to do so.

What risks would an NHS body face if it issued a clear prioritisation policy?

57. There are some legal risks for an NHS body issuing guidance along these lines. The main risk is that the policy would be challenged by way of judicial review but for the reasons set out above, the prospects of success in any such challenge appear low. Provided the policy has been adopted following a lawful decision making process, the court is likely to hold that such a policy is lawful. It is also possible that following the policy will lead to damages claims being brought against the Trust. If the damages claim is solely on the ground of following the policy, such a claim ought to fail. However, that would, of course, not preclude claims brought on standard clinical negligence grounds.

What about risks to individual staff?

58. There is no reasonable prospect that a doctor would be prosecuted for medical manslaughter. A doctor who injects a patient with a lethal drug obviously kills the patient. But whilst a doctor who follows a Trust policy by withdrawing ventilator support would increase the chances of the patient eventually dying, any death would primarily be caused by the effects of the underlying medical condition and not the actions of the doctor. In Airedale NHS Trust v Bland [1993] AC 789 Lord Goff [865] said:

“The law draws a crucial distinction between cases in which a doctor decides not to provide, or continue to provide, for his patient treatment or care which could prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end…The former may be lawful…but it is not lawful for a doctor to administer a drug to bring about death…”

59. The House of Lords was dealing with very different facts from the instant case in the Bland judgment but the speeches in Bland clearly establish a distinction between the withdrawal of treatment and suggest that this is not an act that might be a foundation for an offence of murder. In the same case, the speech of Lord Browne-Wilkinson both expressed the slightness of the factual distinction but made the point clear at page 885:

“The conclusion I have reached will appear to some to be almost irrational. How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question. But it is undoubtedly the law and nothing I have said casts doubt on the proposition that the doing of a positive act with the intention of ending life is and remains murder”

60. Further, there is very persuasive authority that the disconnection of a ventilator amounts to a withdrawal of treatment rather than a positive action[12]. Hence it must follow that an omission to continue ventilation cannot be the “positive act” that kills the deceased and thus attracts liability for murder. Thus, removing an ill person from a ventilator should not be seen as “killing” the person for the purposes of the criminal law even if that proved to be the practical outcome of the action.

61. I also cannot see any legal basis for a doctor being held to be “unfit” by applying the terms of a lawful NHS rationing policy and thus being struck off the medical register, any more than a doctor could be unfit for following any other NHS rationing policy.

DAVID LOCK QC

[1] See https://www.nice.org.uk/guidance/ng159

[2] See https://www.bma.org.uk/advice-and-support/covid-19/ethics/covid-19-ethical-issues I declare am a member of the BMA Ethics Committee but this article is written in my personal capacity and not as a member of the committee.

[3] See https://www.rcplondon.ac.uk/news/ethical-guidance-published-frontline-staff-dealing-pandemic

[4] See https://www.gmc-uk.org/ethical-guidance/ethical-hub/covid-19-questions-and-answers#Decision-making-and-consent

[5] See https://www.nice.org.uk/guidance/ng159/resources/covid19-prescribing-briefing-corticosteroids-pdf-8839913581

[6] As a result of the publicity generated by the case a private donor came forward and the child, Jamie Bowen, had the requested treatment. Sadly it was not successful and she died.

[7] The Court of Appeal may have gone too far in saying that human rights considerations were not engaged at all in NHS rationing decisions, as the Court of Appeal explained in R (Tracey) v Cambridge University Hospitals NHS Foundation Trust & Ors [2014] EWCA Civ 822 but the area of legitimate decision making by NHS bodies in making such decisions is plainly very wide.

[8] Unless funding is approved via an Individual Funding Request decision outside of normal NHS commissioning policies.

[9] This case was decided before government policy changed in 2004 to require prisons to deliver the same standards as care as in NHS facilities.

[10] Section 13(2) EA provides “If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim”.

[11] Having worked through the various other options such as a system of queuing or random allocation in the BMA Ethics Committee.

[12] Auckland Area Health Board v Attorney General [1993] 1 NZLR 235, a judgment to which Lord Goff paid tribute in Bland [867]