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  • Writer's pictureDurham Pro Bono Blog

Exploring the ethical and legal considerations of medical professionals working during a pandemic

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Pia Malla




The COVID-19 pandemic has grievously burdened the healthcare sector.[1] Many healthcare professionals (HCPs) are receiving retraining to help in emergency situations, thousands of retired HCPs are being called back to work and some student doctors have registered to practice early. This article discusses the ethical considerations of medical professionals working during the pandemic, and explores the possibility that a large number of clinical negligence claims may arise, since many practitioners are working outside their usual speciality or area of experience.


What are the risks of working during a pandemic? About 20% of frontline HCPs will become infected while working, and 0.001% are expected to die of COVID-19.[2] They are likely to work lengthier shifts, receive fewer days off, all whilst having to wear uncomfortable PPE kits.[3] There is also the additional risk of spreading the infection to vulnerable family members. One Irish nurse described the exhausting process of coming home from work: stripping naked, cleaning everything she touched in the house with wipes, repeatedly showering and sanitising, and then having to sit in the family room 6 feet away from everyone.[4] Such accounts beg the question: how can HCPs be obligated to take on these immense risks and burdens? According to Christine Tomkins of the Medical Defence Union, all doctors should be guaranteed immunity against the avalanche of negligence claims that come as a result of the COVID 19 crisis.[5] She believes this to be fundamental to reducing stress for healthcare workers but also an appropriate response to the risks that they are taking.


How do we decide the distribution of the workload between HCPs? It is suggested that in order to be ethical, the models for deciding which staff members are allocated to which tasks must be both ‘fair and justifiable’.[6] One such example is the ‘volunteering model’, which would allow potential volunteers to ‘make their own assessment of relative risks’, so they are in control and decide the extent of their contribution.[7] Another is the ‘equal sharing of risk’ model, which means each eligible HCP possesses the same amount of risk (through the use of rotas, for example).[8] Of course, neither model is perfect. Moreover, they both still require adequate preparation, acknowledgement and compensation for HCPs, and the reassurance of priority access to necessary critical care.[9] These steps can ensure that the ethical concerns of the ‘obligation to treat’ on HCPs are taken into account to help stem the growing uncertainty and stress that they face.


And what about the issue of increased negligence claims resulting from HCPs working in areas to which they are less accustomed? A negligence claim requires a patient to display that the doctor failed to meet the required legal standard of care, and that this failure caused the patient’s injury. Context is crucial in establishing reasonableness according to Mulholland v Medway NHS Foundation Trust, where it was confirmed that “the standard of care owed by an A&E doctor must be calibrated in a manner reflecting reality”.[10] It will be difficult to establish negligence for doctors who have provided care in the context of the pandemic, where they are working in highly pressurised emergency departments and have to respond and act quickly. It is unlikely that their actions would not comply with a responsible body of peer opinions, unless the error in question was egregious.


In this situation, the Medical Defence Organisation is asking the government to introduce legislation to exempt the NHS from COVID-19 related negligence claims.[11] This would be intended to protect the NHS from footing the bill for a floodgate of negligence claims. However, it is arguable that there is no reason for doctors that make errors in judgement not to be held to account. Furthermore, state benefits are not adequate to meet a severely injured patient’s needs and negligence claims may help us fight future pandemics by improving the standard of healthcare.[12] On the other hand, considering the intensity of the crisis and the risks being undertaken, arguably indemnity should be provided to all contributing HCPs. A failure to do so would put them in an unfair and distressing position, which may lead to more negligence claims that the NHS will have to foot the bill for, and many HCPs would have to face the ordeal of a trial.


HCPs who do not have immunocompromised family members can help with staffing shortages in a morally permissible way. It is crucial to inform them of the risks they are undertaking so that they can properly consent to their new roles which come with such heightened responsibility during the pandemic. I believe (like Tomkins) that medical professionals should be guaranteed indemnity to avoid grievous errors induced by stress as well as properly incentivise them to embrace their new responsibilities that have resulted from this pandemic.


 

Sources

[1] Doug McConnell, ‘Balancing the duty to treat with the duty to family in the context of the COVID-19 pandemic’ (2020) Journal of Medical Ethics 46, 360-363. <https://jme.bmj.com/content/46/6/360>, accessed 15th November 2020


[2] Ibid


[3] Ibid


[4] Ibid


[5] ‘MDU calls for national debate over protecting NHS from COVID-19 clinical negligence claims’ (The Medical Defence Union, 2020) <https://www.themdu.com/press-centre/press-releases/mdu-calls-for-national-debate-over-protecting-nhs-from-covid-19-clinical-negligence-claims> , accessed 15th November, 2020


[6] Michael Dunn, Mark Sheehan, Joshua Hordern, Helen Turnham and Dominic Wilkinson, ‘Your country needs you’: The ethics of allocating staff to high-risk clinical roles in the management of patients with COVID-19’ (The BMJ, 2020) <https://blogs.bmj.com/medical-ethics/2020/04/11/your-country-needs-you-the-ethics-of-allocating-staff-to-high-risk-clinical-roles-in-the-management-of-patients-with-COVID-19/>, accessed 15th November 2020


[7] Ibid


[8] Ibid


[9] Ibid


[10] Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 [101] (Greene J)


[11] Christine Tomkins, Craig Purshouse, Rob Heywood, José Miola, Emma Cave, Sarah Devaney,‘Head To Head: ‘Should doctors tackling COVID-19 be immune from negligence liability claims?’ (The BMJ, 2020) <https://doi.org/10.1136/bmj.m2487>, accessed 15th November 2020


[12] Ibid


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