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 This blog is written towards the beginning of the Covid-19 lockdown. We are not yet three weeks in, and do not know what the future holds.  This post has already been updated once since publication and in the fast paced news of coronavirus, more updates will come.  This post therefore may not be an exhaustive analysis, but we will revisit the subject as and when developments require.  We would also welcome any relevant new information on the topic, especially from those at the front line: please send to This email address is being protected from spambots. You need JavaScript enabled to view it..

 The Government is clear that there is not, and is unlikely to be, a situation where there are more patients nationally requiring ventilation than there are ventilators.  If achieved, avoidance of the situation faced by doctors in Italy and Spain will come about by a combination of increased supply of ventilators, moving patients and ventilators around to match supply to demand, and the application of tough triage criteria, so that access to ventilation is limited to those likely to make a recovery.

But avoidance cannot be guaranteed. Local surges in demand will occur, and may lead to temporary shortages.  The risk of demand exceeding supply exists.  News reports in The Guardian and Daily Mail suggest that this has already happened in some hospitals.

Were that risk to eventuate, the withdrawal issue would arise:

Can a ventilator ever lawfully be removed from a ventilated patient who may be deriving benefit from it, for the purpose of providing that ventilator to different patient?

If it can, how should withdrawal and reallocation decisions be made?

In our view, these questions should be asked and answered now, before the risk eventuates, and in the profoundest hope that it never does.

Over the last week, NICE, the BMA, the Royal Colleges and the GMC have all published guidelines touching on ethical treatment issues raised by the Covid-19 pandemic. They have many thoughtful and helpful things to say, but there are significant gaps and problems:

If a situation arises where it is considered necessary to take a life to save more lives, the basis on which that happens needs to be open, transparent, nationally consistent and it needs to have public support.  A person with Covid-19 respiratory distress admitted to hospital is entitled to know what they can expect in terms of life saving treatment. They are entitled to know whether, if they need ventilation, it will be limited or unlimited, and whether it can be removed against their wishes.

Doctors deserve the reassurance of knowing that what they are advising and doing is lawful, and in conformity with a national consensus.  We are aware that at least one hospital is now running daily ethics committee meetings to address these issues, which shows that they are being addressed at a local level.  But not all hospitals have the resources to do this, and not all ethics committees will reach the same conclusions.

Our view is that:

The purpose of this article is to touch on the existing guidelines, and then consider some of the ethical and legal issues that must be addressed.

We do not know what the answers are or should be. We do know that public opinion will be divided.

Guidance from UK Bodies

On 27th March the General Medical Council (GMC) published its updated guidance to the medical profession.  The GMC is plainly alive and sympathetic to the dilemmas that doctors may face.  Under the section “Prioritising Access to Treatment” it states, “If more individuals have life-threatening conditions than can be treated at once, doctors will have to make very difficult decisions about how to allocate resources. We advise doctors who are faced with these decisions to: take account of current local and national policies that set out agreed criteria for access to treatment…”

A doctor (or member of the public) reading this advice would reasonably assume that there exist current local and national policies, setting out agreed criteria for access to, or withdrawal of, treatment.   That appears not to be the case. There is almost no publicly accessible information about rationing criteria in the UK as a whole, or in any particular hospital. 

On 30th March, NICE produced a freshly revised guideline on critical care for Covid-19 patients, which can be found at https://www.nice.org.uk/guidance/ng159. There is a flowchart summarising the decision making process.  The original guideline, published on 20th March 2020, used a ‘clinical frailty scale’ to assist in the decision-making process.  There was an almost immediate legal challenge on the grounds that use of that scale for these purposes did not fully respect the rights of the disabled, particularly healthy adults with autism or learning difficulties and those with stable conditions such as cerebral palsy. (For a summary of this challenge, see the solicitor’s post). NICE revised its advice.

Welcome though it is, the NICE guidance says nothing about triage or decision making in the context of limited ventilator or critical care unit (CCU) availability.  It is conspicuous by its absence. Section 3, “Starting, reviewing and stopping critical care treatment”, simply states that clinicians should, “start critical care treatment with a clear plan of how the treatment will address the diagnosis and lead to agreed treatment goals (outcomes).”  Section 4.5 confirms that decisions about the use of critical care resources “should only be made by, or with the support of, healthcare professionals with expert knowledge and skills in critical care.”   However, there is no public record of any guidance offered to the experts expected to make the decisions.

The Royal College of Physicians has published its “Ethical dimensions of COVID-19 for front-line staff”.  This document is supported by 14 other Royal Colleges and Faculties, including the Royal Colleges of Anaesthetists and Emergency Medicine.   It contains much that is practical, helpful and supportive to front-line staff.  But where prioritisation of care is raised, the document simply refers to the above NICE guideline that is silent on the issue.

The Royal College of Surgeons has “Good Practice for Surgeons and Surgical Teams”.  This contains extremely important guidance on a number of issues, including withholding surgical intervention in the current crisis.  On the question of the provision of care to surgical patients in intensive care, this document also returns the reader to NICE.  

The most recent document from a national body is the BMA’s “COVID-19 – ethical issues. A guidance note.” This is the only document to tackle openly the question of rationing.  It identifies a number of areas where systems are necessary and states that a framework for clinical decision is desirable: “Public acceptance of rationing decisions, and cooperation in a health emergency, are more likely if citizens accept the fairness and legitimacy of allocation decisions and have been informed beforehand of the anticipated response.”

It identifies the following rationing/prioritisation issues:

The BMA guidance says:

“…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 has a higher priority for the available treatment. These are grave decisions, but the legal principles were established in relation to the allocation of organs for transplantation and have been recently upheld by the Court of Appeal[1]. In relation to adults lacking capacity, these prioritisation decisions are not ‘best interests’ decisions under capacity legislation.

The BMA expressly acknowledges that rationing decisions are not ‘best interests’ decisions. Rather, says the BMA, such decisions are a policy matter driven by distributive justice. Looked at from the perspective of the patient and his family and carers, a rationing of access to potentially life-sustaining treatment would plainly not be a decision taken in a patient’s ‘best interests’.

Moreover, the BMA discussion is solely about the refusal to provide treatment in the first place, not removal of treatment from a person already being treated. To focus on the analogy provided, ventilator withdrawal is akin to embarking on a heart transplant operation and then deciding part way through to give the donor heart to another patient.

The GMC’s guidance on Treatment and Care towards the End of Life, which predates the current pandemic by several years, says this:

“Presumption in favour of prolonging life

 

  1. Following established ethical and legal (including human rights) principles, decisions concerning potentially life-prolonging treatmentmust not be motivated by a desire to bring about the patient’s death, and must start from a presumption in favour of prolonging life. This presumption will normally require you to take all reasonable steps to prolong a patient’s life. However, there is no absolute obligation to prolong life irrespective of the consequences for the patient, and irrespective of the patient’s views, if they are known or can be found out. 

Resource Constraints

 If resource constraints are a factor, you must: 

…. (c) make sure that decisions about prioritising patients are fair and based on clinical need and the patient’s capacity to benefitand not simply on grounds of age, race, social status or other factors that may introduce discriminatory access to care

  1. You should not withdrawor decide not to start treatment if doing so would involve significant risk for the patient and the only justification is resource constraints.

This 2010 guidance was no doubt not intended for use in a pandemic. Given the current pandemic, it is contradicted by the GMC’s own recent acknowledgment that resource constraints may become a factor in deciding whether or not to start or continue ventilation.  

The guiding principle in a war, natural disaster or pandemic is to prioritise those with the highest chance of surviving. Covid-19 presents specific ethical problems because it affects certain groups in particular, such as the elderly or those with pre-existing respiratory problems, whilst also killing young adults and children previously in good health. Non-governmental bodies have now provided doctors and the public with a raft of general guidance documents that are not legally binding, provide no framework for use in specific situations, and contain no protocols or criteria for rationing. It appears that the Government has made a decision to leave it to each individual trust to develop its own “appropriate prioritisation policies”.

There are a number of serious risks for patients, families, individual clinicians, the NHS and the public as a whole if that remains the case.

Scottish Guidance

On 3rd April the former Chief Medical Officer of Scotland published its Covid-19 Guidance: Ethical Advice and Support Framework.   It offers a general reminder that clinical decisions should continue to be guided by the principles of GMC Good Medical Practice, and available evidence.   More interestingly, it recommends the formation of both local ‘ethical advice and support groups’ as well as a national group.  It is envisaged that such groups will be able to assist in the “small number of situations beyond the scope of national guidance or the experience of clinical teams”.   Unlike the NICE guideline, the Scottish guidance at least acknowledges that, “Where there are resource constraints, patients should receive the best care possible, while recognising that there may be a competing obligation to the wider population.”  However, no actual guidance is offered as to how an ethical and legal framework for consistent decision making might be structured.

The lack of concrete clarity and assistance provoked an immediate response from the head of Scottish Care, who commented that it left him “with more questions than answers and no small sense of disappointment.”  He also expresses concern as to how the State will fulfil it duties under the Europoean Conventin of Human Rights, observing there is no “robust articulation” of this within the Scottish guidance.

To command confidence amongst both clinicians and the public, any guidance must clearly confront these issues.

Guidance from Overseas

At the end of March 2020, the New England Journal of Medicine, published “Fair Allocation of Scarce Medical Resources” and kindly made it freely available, along with all its Covid-19 material[2]. This carefully constructed article (which does not constitute UK guidance) makes 6 rationing recommendations.  Its founding recommendation is that an unapologetically utilitarian approach be adopted, maximising the overall benefit to society.  This leads to further recommendations, which include:

A year ago, back in April 2019 before anyone had ever heard of Covid-19, the American journal, CHEST, prophetically published, “Too Many Patients…A Framework to Guide Statewide Allocation of Scarce Mechanical Ventilation During Disasters”.  The article contains a critical care disaster resource allocation framework ‘developed following a statewide community engagement process in Maryland’.   It identifies a number of objective clinical factors to take into account.  It also contains the suggestion of a lottery approach when clinical criteria do not adequately distinguish the priority that should be given to specific patients. 

The state of New York had also been preparing, mindful of the foreseeable risk of a flu pandemic coupled with a shortage of resources. In 2015, its State Task Force on Life and the Law together with the New York State Department of Health published Ventilator Allocation Guidelines[3]. This is a 266 page document containing a clinical, ethical and legal framework for making rationing decisions during a pandemic together with detailed allocation protocols for adults, children and neonates. The last chapter considers legal issues arising out of medical treatment decisions during a pandemic. It touches on (this is not an exhaustive list) whether the requirement for informed consent to withholding and withdrawal of treatment should be suspended during a declared emergency, legal protection for doctors acting in good faith from criminal and civil liability and the need for an appeals process for triaging decisions. In relation to this last, the Task Force recommended a hybrid between a real time on-going appeals process (where, for example, a decision for an individual had been made without access to all the relevant facts) and a periodic retrospective review.

Italy’s College of Anaesthesia, Analgesia, Resuscitation, and Intensive Care (SIAARTI) has now published ‘Clinical Ethics Recommendations for the Allocation of Intensive Care Treatments, in Exceptional, Resource-Limited Circumstances’.  This document advocates an acceptance that, in the current Covid-19 crisis:

Some of these observations make for tough reading but the issues cannot be ignored.  On a national level, the UK has nothing approaching the New York or Maryland frameworks and protocols[4]. In the absence of criteria informing the allocation of limited resources before those resources are exhausted, the mechanistic application of the current NICE guideline (and in particular the flowchart) could quickly and easily lead to a scenario where all ventilators are allocated.  Clinicians would then be faced with a cohort of patients who had been on a ventilator for several days either deteriorating or without showing sign of improvement, and a cohort of patients with greater potential to survive but with no access to a ventilator.

A clear, transparent, practical, specific protocol for universal UK use which sets out how to make these immensely difficult decisions is required as a matter of urgency. It is required in order that the NHS may avoid or reduce the risk of ventilator capacity being exceeded. It is also required to ensure that there is fairness and consistency if the situation arises where a decision must be made about reallocation of a ventilator from a declining, ventilated patient to patient with a greater chance of survival who desperately needs ventilatory support. 

 

Withdrawal of Ventilator Support and Intentional Killing

The NEJM article says:

“Because maximizing benefits is paramount in a pandemic, we believe that removing a patient from a ventilator or an ICU bed to provide it to others in need is also justifiable and that patients should be made aware of this possibility at admission.” 

The authors go on to state that:

“many guidelines agree that the decision to withdraw a scarce resource to save others is not an act of killing and does not require the patient’s consent.”

Many people will consider such guidelines profoundly wrong. And agreement between bioethicists is not a statement of law.

There are real legal problems with the concept of taking a life to save a life.

In normal times, the intentional performance of an act (or where there is a duty to act, an omission) knowing it will lead to another’s death is murder.  It is murder even when death is the consequence, but not the desired outcome, of the person committing the act, see R v Woollin [1999] 1 AC 82: ”Where a man realises that for all practical purposes it is inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen.”

In normal times, that the person who dies would have died soon anyway is immaterial: in law, a person’s death is regarded as having been caused if it has been hastened by the act of another.  The hastening act need not be the sole or even the principal cause of death. That it “more than minimally negligibly or trivially contributed” will suffice, see R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344.

Necessity will not normally provide a justification for what is otherwise murder, see the infamous cannibalism at sea case of R v Dudley & Stephens (1884) 14 Q.B.D. 273. 

More recently, in the case of In Re A (Children) (Conjoined Twins: Surgical Separation) 2000 Lloyds Rep Med 425 the Court of Appeal accepted that the judgment in Dudley & Stephens was not conclusive of the matter – a point returned to below.

The law of murder is applicable to withdrawal of medical treatment.  The Master of the Rolls stated in R (Burke) v General Medical Council [2006] Q.B. 273,

34.  No such difficulty arises, however, in the situation that has caused Mr Burke concern, that of the competent patient who, regardless of the pain, suffering or indignity of his condition, makes it plain that he wishes to be kept alive. No authority lends the slightest countenance to the suggestion that the duty on the doctors to take reasonable steps to keep the patient alive in such circumstances may not persist. Indeed, it seems to us that for a doctor deliberately to interrupt life-prolonging treatment in the face of a competent patient's expressed wish to be kept alive, with the intention of thereby terminating the patient's life, would leave the doctor with no answer to a charge of murder.”

 While the above statement seems unambiguous, paragraph 21 of the same judgment is important in the current emergency:

“There are great dangers in a court grappling with issues … when these are divorced from a factual context that requires their determination. The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice. This danger is particularly acute where the issues raised involve ethical questions that any court should be reluctant to address, unless driven to do so by the need to resolve a practical problem that requires the court's intervention.”

Both the Royal College of Physician Guidelines and those of the BMA advise that “it is ethically equivalent to withdraw treatment instead of withholding treatment”.  The Royal College fairly accepts that in practice, withdrawal will ‘feel different’.

The legal source for this guidance is unclear (and the proposition is not universally accepted by ethicists[5]). In light of the observation of the Master of the Rolls in Burke, this statement of equivalence should be approached with considerable caution.  Removing ventilation and not providing it in the first place may not be regarded by the courts as legally equivalent. Or, depending on the circumstances in which ventilation is deliberately withheld, they may be regarded as of equivalent unlawfulness. 

People without ethical or legal training do not regard being taken off a ventilator and dying as a result as the same as not being allocated a ventilator in the first place.  We come back to the need for an open and transparent national debate that results in a nationally applied approach to withdrawal that has public support.

Article 2 of the ECHR

“No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

It is not possible to derogate from Article 2, which confers on the State both a negative obligation (not to take life intentionally) and a positive obligation ‘to take appropriate steps to safeguard the lives of those within its jurisdiction’.[6]

In the conjoined twins case, Brooke LJ declared himself ‘unattracted’ by the argument that Article 2 contained an implied implication that the right it proclaims may be violated if it is in conflict with another person's Article 2 right as a limitation which would ‘destroy its value’.

So there is some logical support for the propositions that both removal of ventilation from a capacitous patient who does not consent, and withdrawal of ventilation from such a patient after he has lost capacity to communicate his decision, may be murder or manslaughter.

Best Interests

What of the patient who has not made his position clear to doctors before losing capacity?

As the BMA’s Guidance acknowledges, withdrawal of ventilation during a pandemic to prioritise the clinical need of another patient is not a best interests decision. It would be a clinical decision, applied to the capacitous and incapacitous alike (rightly so, since there is a continuing duty to treat and not to discriminate), taking account of available resources and comparing the prognoses of the respective patients. Thus there appears to be no real scope to rely on best interests either as a justification for a resource-based withholding or withdrawal of ventilation, or as a defence to criminal or civil liability.

Necessity

The circumstances in which the defence, or justification, of necessity might exceptionally apply was considered in the conjoined twins case by Brooke LJ. He set out the three requirements derived from Dudley & Stephens and the judicial commentary that immediately followed it:

  1. the act is needed to avoid inevitable and irreparable evil; and
  2. no more should be done than is reasonably necessary for the purpose to be achieved; and
  3. the evil inflicted must not be disproportionate to the evil avoided.

Brooke LJ was satisfied that all three conditions were met and that principles of modern family law pointed irresistibly to the conclusion that the interests of the healthier twin must take priority over the conflicting interests of her sister.

This Court of Appeal decision, albeit described at the time as ‘wholly exceptional’ and made in very different circumstances, could be regarded as providing some authority for the proposition that it might not always be unlawful, during the Covid-19 crisis, to take a life to save more lives.  

A conclusion that, in these exceptional times, necessity should be a defence to any charge of murder or manslaughter arising out of a properly made Covid-19 health decision may be one that has broad public support. But that support is unlikely to be universal; people with disabilities, the elderly and those concerned with protecting the rights of both of these groups will have particular concerns. 

Without the formulation of a clear policy that informs all of the NHS (and which is endorsed by the Crown Prosecution Service) about when and how it might be lawful to withhold or withdraw treatment so that death eventuates, there is a real possibility that the lives of patients who have only a slim chance of survival are prolonged on ventilator support whilst others, whose chances are good, are denied early – and potentially any - access to life-saving treatment.

Advance Consent to Withdrawal Resulting in Death?

The Mental Capacity Act 2005 enables adults who are capable to refuse specified medical treatment for a time in the future when they may lack capacity to consent to or refuse that treatment. Where the treatment is life-sustaining, the decision must be put into writing and signed and witnessed. If those (and other) formalities are made, doctors must comply with the decision. Few people make an advance decision to refuse treatment and most Covid-19 patients will not have done so.

Doctors might seek a patient’s advance verbal consent to withdrawal in certain circumstances – for example that following serious deterioration, the ventilator could be provided to another patient with a better chance of survival.  There will be some patients who would agree to this, as press reports seem to have confirmed.  But other members of the public may find it unacceptable that a Covid-19 patient so ill as to need ventilation should even be asked the question. A national debate would provide those who do wish to contemplate the possibility of limitations on their care with an opportunity to make a choice they would not otherwise realise that they have.

Discussing consent to withdrawal with all patients during a pandemic presents a number of problems. Doctors would recoil, and it would be close to impossible to know whether consent had been freely given. The circumstances would be redolent of duress, particularly if it was a condition of being given access to a ventilator that the patient agreed to potential future limitation of life-sustaining support. Many of the concerns of those who oppose a lifting of the blanket ban on (and continuing criminalisation of) assisted suicide are relevant here.

Even if freely given, consent could of course be freely withdrawn at any time.  But suppose a patient made an autonomous decision of his own free will that in the event of deterioration and ventilator shortage, he would want a younger, fitter person to take his ventilator – would that provide a lawful basis for withdrawal?

As the BMA acknowledges, allocation of ventilators and withdrawal of ventilation for the purpose of re-prioritisation is a matter of policy rather than individual best interests. But (subject to what is said above about the need for a formal clinical framework) a dispute about best interests could still arise after a resources decision had been made. Section 4 of the Mental Capacity Act 2005, headed “best interests”, sets out the framework that must be used when determining what is in the best interests of an incapacitated person. Sub-section 6 says that the decision maker must “consider, so far as is reasonably ascertainable—(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity)”. But sub-section 5 says: “Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

Where the court could be sure that there had been no duress and that the ventilated patient’s wishes were clear, it may be that a judge would consent to withdrawal on the patient’s behalf on the basis that the reason for withdrawal was to give effect to the patient’s wishes and not a desire to bring about his death.

A Potential Way Forward

In normal times, general guidance and general statements of principle (treat according to need, consult with family and carers, do not discriminate, document your decisions, take a team approach, seek advice from ethics committees) to be followed on a case by case basis by individual hospitals would suffice. 

But the Covid-19 crisis means that we are living, and dying, in extraordinary times. General guidance for local implementation is insufficient.

Some large Trusts have ethics committees and access to medical ethical advice which can be obtained at any time, even out of hours. Many other Trusts do not. Even where there is an ethics committee, in the grip of a pandemic surge, there may not be the time rapidly to produce guidance on prioritisation and there may be internal disagreement that takes time to resolve. 

Significant differences in approach between Trusts’ guidelines (if they were published and open to scrutiny) would undermine public confidence in the NHS. 

The library of general guidance documents now available provides insufficient detail about the triage criteria to be applied if demand outstrips supply, so as to allow for consistent, fair decision making. And it provides no assistance with specific issues in addition to withdrawal of ventilator support, such as whether and when children should be given priority over those who have lived for many decades.

New York’s current experience demonstrates that even department of health approved, detailed guidelines and protocols may not be enough if there is no clarity about whether they do or do not constitute binding policy. One might have thought that that State was amply well prepared to make any rationing decisions that Covid-19 may require, and that the 2015 Ventilator Allocation Guidelines would be implemented immediately. But at least one recent report indicates that there is confusion, with the president of the Medical Society of the State of New York advising hospitals to refer to the 2015 Guidelines, a spokesperson for the State’s Health Department announces that the same Guidelines are “not a binding policy document and is not guiding the state’s response”, and politicians refusing to discuss the issue of ventilator rationing.

The body of UK guidance produced for use during Covid-19 is silent about withdrawal of ventilation for the purpose of benefitting another patient. Front-line NHS staff need clarity, and they need burdens lifted. It is not appropriate to ask them to re-invent, and justify, a framework for clinical decision making each time they are faced with a resource allocation decision.

The Maryland criteria, New York Ventilator Allocation Guidelines and the SIAARTI guidelines demonstrate that it is possible to provide doctors and the public with a clear, accessible policy about triage and about when ventilation can be withdrawn lawfully, the criteria that must be applied and the method by which such decisions may be challenged. SIAARTI seems to recommend making more ventilator support conditional upon the patient continuing to meet certain specific clinical criteria. That may address problems around consent, and - perhaps - provide an answer to concerns about criminal liability.

There is some irony in the fact that one must turn to the New York Times for information about why the UK, whose regulatory and advisory bodies have been duplicating effort by compiling individual guidelines, lacks a national policy. If its report (https://www.nytimes.com/2020/04/03/world/europe/britain-coronavirus-triage.html) is accurate, the office of the Chief Medical Officer had been expected to issue a national triage policy at the end of March 2020. Again, if the report is accurate, that policy might have required application of a formula based on a ranking of survival chances, similar to the formula used to decide which patients are allocated an organ for transplantation. The report says that a decision was then made not to produce a national policy or even make public the fact that one had been discussed, for fear of sowing panic.

On 5 April, Radio 4’s Sunday programme broadcast a discussion between Dominic Wilkinson, Professor of Medical Ethics at Oxford University and consultant neonatologist and the Rev Dr Brendan McCarthy, National Adviser on Medical Ethics for the Church of England. Discussing concern about discrimination and use of blunt treatment exclusion criteria such as an age limit or exclusion or pre-existing illness, Professor Wilkinson said that such tools are not used. At the same time, acknowledging that older people and those with serious and underlying multiple illnesses are at higher risk of dying from Covid-19 infection, he said, “doctors when thinking about which patient might survive will and should take into account those factors”. If there are multiple patients with a good chance of survival and a choice to be made between them – should there be priority for healthcare workers or for children over adults? He said that there was “no ethical consensus or national guideline to tell doctors in this country what should happen in that situation” on that issue. Dr. McCarthy suggested that doctors have enough “reserves of knowledge”, experience and guidelines to enable them to make necessary decisions and that if we go beyond the GMC guidelines we enter into “such a moral maze that it is almost impossible to unravel”. He considered that treatment allocation decisions could and should be left to “the wisdom and the humanity of the clinicians making the decisions on the ground.” In response, Prof Wilkinson said that NHS staff were under enormous stress not only from physical strain but also “anxiety at some of the moral decisions they might face”. For that reason, and also to ensure consistency of decision making across the country, his view was that “there is a need for clearer national guidance that identifies and articulates what the ethical and legal rules should be if - and let’s all hope it doesn’t come to that - doctors are having to make those very difficult choices about who to save.”

We do not have the answers. But as an open, democratic society, we owe it to ourselves, to patients their families and their doctors, to confront these horrific questions and to reach specific answers we can all accept. This should be done through Parliament, but failing that a single, national clinical framework to assist decision makers is an urgent priority.

 

[1] The BMA guidance relies as legal authority for this statement on R (BA) v The Secretary of State for Health and Social Care [2018] EWCA 2696. That case, which concerned Secretary of State’s directions prioritising UK residents over illegal immigrants for kidney transplants, does not provide quite the assurance the BMA suggests.  Firstly, the Court was explicitly not asked to consider whether the decision to give priority to those ordinarily resident in the UK residents over illegal immigrants was rational, although it hinted that it would have found the decision rational if asked. Secondly, it was not asked to consider the impact of the Human Rights Act.  Thirdly, while that case, and R v North and East Devon Health Authority, Ex p Coughlan [2001] Q.B. 213, do support the proposition that allocation decisions may have regard to the health of the national generally, the duty under section 1 of the National Health Service Act 2006 and the availability of resources, it says nothing directly about stopping treatment of those who have already been allocated the resource. 

[2] https://www.nejm.org/doi/full/10.1056/NEJMsb2005114?query=featured_coronavirus

[3] https://www.health.ny.gov/regulations/task_force/reports_publications/docs/ventilator_guidelines.pdf

[4] The ethical framework in the Government’s pandemic flu planning information does not provide any specific clinical or ethical guidance in the allocation of limited medical resources.

[5] See for example, “Withdrawal Aversion and the Equivalence Test” Wilkinson et al, The American Journal of Bioethics 19(3): 21-28, 2019 and the contrary view in “Categorical Mistakes and Moral Biases in the Witholding-versus-Withdrawal Debate” Hoffman, The American Journal of Bioethics, 19(3): 29-31, 2019

[6] Lambert v France (2015) ECHR 185 at [140]