COVID-19 and the ethical and legal challenges with limited resources

As this is a fast moving topic, please note that this article is current as at 23/04/20. For further information, please contact Rob Tobin

COVID-19 has presented significant ethical and legal challenges for our healthcare system. Treatment of patients tends to be centred on a best interest approach to decision making, but if demand for the exhaustible supply of resources exceeds their availability, treatment in a patient’s best interests may not be possible.

Here we explore some of the profound questions that this raises.

Not a question of best interests but on availability of treatment

Any treatment option is predicated on the availability of that treatment at that particular time. Treatment may be in a patient’s best interests but it might not be available. Availability therefore becomes a cornerstone of any decision where resources are limited and in those circumstances, the issue for clinicians and healthcare organisations moves away from best interests to a focus on resources.

It may not matter if a treatment is in the patient’s best interests if it cannot be provided due to limited resources. Case law has shown this to be lawful and the duty to provide healthcare treatment to a patient in the UK is not absolute.

How should patients requiring intensive care treatment be triaged?

Much of the published guidance in the UK around treatment decision-making with COVID-19 centres around a clinician focused decision tree, assessing each patient individually. This is right, to the extent that it is possible to provide all patients with the treatment they reasonably require in their best interests.

National guidance has not, yet, focused on the question of prioritisation of patients, where resources are scarce, perhaps in the hope and expectation that supply will keep pace with demand. It is of course hoped that supply will prevail, and with the opening of various NHS Nightingale Hospitals; the production of thousands of new ventilators and C-PAP machines, and the redeployment of staff to COVID-19 focused areas, this desire is so far a realistic one.

Triage remains crucial to early treatment decision making to ensure patients are provided with the right treatment for them, by the most efficient and effective means.

The National Institute for Clinical Excellence (NICE)

NICE set out a clinical frailty score system which assesses a patient’s initial condition, past history, age (but only in the context of any frailty) and comorbidities in order for a clinician to triage them. This is not a prescriptive tool but advisory and decision-making remains individualistic and at the hands of the treating clinician.

In suggesting how clinicians might triage their patients, particularly with competing needs, the NICE guidance signposts clinicians to current “local and national policies”, many of which do not exist. To generate consistency, particularly with equality laws in mind, we consider firm national guidance or legislation should be urgently set out.

The General Medical Council (GMC)

The GMC’s Coronavirus Guidelines provide that in deciding the safest and best course of action in the circumstances, doctors should consider what will be best for the individual patient given available options. This is an important recognition that doctors can only provide to patients what is in their gift and that it might be subject to constrained resources.

The Royal College of Physicians (RCP)

The RCP guidance states that:

“all 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.”

The guidance also defers to local and national policies.

The British Medical Association (BMA)

The BMA’s approach is put concisely on page 2 of their guidance – “in dangerous pandemics the ethical balance of all doctors and health care workers must shift towards the utilitarian objective of equitable concern for all.” Specifically the BMA advises that where choices are required between those with equal need, a policy of “first come, first served” should be adopted.

Of course, where there is true equal need, this policy seems the most appropriate. Where needs are variable will give rise to challenge, which is where clear decision making tools are required to ensure all patients are treated fairly and consistently throughout the country.

Who should make the decision regarding triage?

NICE guidelines advocate that the treating clinician should bear the burden of deciding who is treated. We consider this too great a burden on an already overworked clinician who will find it challenging to be objective, particularly if they are faced with two or more equally unwell patients. Further, it is, after all, going against the very foundations of a doctor to decide not to provide treatment to a patient that would ordinarily be in their best interests because another patient is more likely to benefit from it and quicker.

We advocate the use of local ‘clinical ethics committees’ which can meet and make objective decisions on behalf of treating clinicians. This is supported by the GMC, the Royal College of Physicians and the BMA. It has been recommended that on such committees there are individuals from various backgrounds, in order that a well-grounded decision can be made. Examples are priests, lawyers, doctors, ethicists etc. Some hospitals have already set up or are in the process of setting up such committees.

To ensure consistency in approach and decision-making, there should be a national framework adopted from which all ethics committees operate. The committees themselves should be accountable and open to challenge, urgently if necessary, so that due process is exemplified. It is important to remember, these committees’ focus will be on the allocation of resources, rather than best interest decisions.

Can clinicians withdraw intensive care treatment in favour of another patient receiving treatment?

In terms of legality, it has to be borne in mind that an act (or omission of an act where there is a duty to act) which leads to another person’s death can constitute murder. It has been suggested by some that the case of Re A(conjoined twins) [2001] and the principles derived from that case can be used to defend clinicians accused of murder where they discontinue treatment for one patient in favour of treating another patient.

It is foreseeable that clinicians would be able to rely on the defence of necessity in this unprecedented healthcare emergency and we watch the courts closely to see how they deal with such challenges.

A safer way to manage the process of bed shortages is to agree that a patient, upon starting their treatment course, is given clear ceilings of treatment or trial of therapy, which are regularly reviewed. If, after the prescribed time period, which will differ per patient, they have not met the clinical goals, conversations can be held with relatives about withdrawal of treatment in their best interests. NICE appear to support this, commenting that treatment should be stopped when goals cannot be reached.

Of course, the real legal and ethical dilemma will be whether treatment can be withdrawn due to resources where continued treatment might remain in a patient’s best interests but where it is apparent that another patient will likely benefit more from that resource. Commentary, including in the FAQs attached to the BMA guidance, recognise no distinction between withholding and withdrawing treatment, therefore implying it is possible to withdraw treatment from a patient for resourcing rather than best interest reasons. We share this legal interpretation, although recognise the risk of legal challenge and the potential for prosecution were it followed without endorsement from national bodies including the BMA and, ideally, by Parliament or the Judiciary.

Whilst this does appear to be the fairest way of dealing with withdrawal in this unprecedented situation, pushback will inevitably come from those whose treatment is withdrawn (or their families), given effectively it is a policy of survival of the fittest. The BMA do caveat their guidance by advising that treatment may be discontinued where there are other patients whose outcome could be more favourable or where benefit will materialise quicker, thereby delivering the greatest medical benefit to the greater number of people.

Comment

There is a lack of legal framework from government to address these difficult questions over allocation of finite resources, which by their nature encompass complicated ethical considerations. Such a framework is necessary in order that there can be a clear way forward for clinicians and patients alike.

Without a framework, clinicians are left to follow whichever guidance they feel comfortable following, inevitably leading to different decisions being made at different hospitals by different clinicians. This will pave the way for claims made by the families of those who feel their loved ones have been disadvantaged unfairly by a healthcare system which is crying out for a clear and consistent consensus on what to do.

Read others items in Healthcare Brief: COVID-19 edition - April 2020

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