COVID-19, Anaesthetists and Intensivists and the law
The Association of Anaesthetists and the Intensive Care Society wrote to regulators and public prosecution services, chief coroners and equivalents in the UK and Ireland highlighting the frontline roles that anaesthetists and intensivists are taking in the COVID-19 crisis and to raise concerns about the risk of civil, regulatory and criminal prosecution that may follow in the aftermath of the pandemic. Matters of particular concern include: clinicians working outside their usual scope of practice, ethical and difficult decision making and the ability to speak up when we consider resources, guidance or support to be inadequate. In our letter we stated that we would ‘offer our expert opinion in support of any member subject to inappropriate or unreasonable investigation in relation to the clinical care they provided during the COVID-19 pandemic’.
To date we have received replies from the General Medical Council, the Irish Medical Council, the Public Prosecution Service for Northern Ireland and the Crown Prosecution Service [England and Wales] and a summary of responses received is outlined below:
General Medical Council
The GMC acknowledges how the medical profession has had to change working practices rapidly in this unprecedented and stressful time. The GMC offers tailored and accessible information online via its ethical hub pages providing advice on difficult decision making, working outside usual scope of practice, PPE and speaking-up.
Any Fitness to Practice (FtP) investigation would take account of the context within which the doctor was working, considering the system pressures and wider Covid-19 related issues. However, it is important to note the GMC does not have control over the law and civil action. Current FtP statistics show that most tribunals relate to professional conduct matters as opposed to clinical practice. Good record keeping is ‘vitally important in showing your working and reasoning for any decision or action taken and will be key evidence in justifying what has or has not been done’.
Irish Medical Council
The Medical Council has published a series of statements acknowledging ‘the exceptional circumstances faced by doctors managing the COVID-19 pandemic’. They encourage doctors ‘to remain calm and to follow their own clinical and professional judgement as best they can and to recognise any areas of practice where they are not proficient and consult with colleagues’. They note that the current situation is evolving and unprecedented. Doctors must rely on the resources and guidelines available to them in order to make the best decisions possible. The Medical Council will support doctors to this effect and will take the specific facts of each case into account should any complaints be raised. Around difficult ethical and clinical decision making, the Medical Council notes that the treatment decisions taken may not always receive universal support. They comment that the burden of these difficult decision is shared by the themselves and wider society.
Public Prosecution Service for Northern Ireland
The Director of Public Prosecution (NI) shared their gratitude to the medical profession for their ‘extraordinary efforts and sacrifices’ in responding to the pandemic. Although understanding of our concerns about working out-with our normal clinical setting and potentially having to make difficult ethical decisions, they noted that it is not the Director’s remit to offer guidance to clinicians. Our letter has been passed on to the Chief Medical Officer in Northern Ireland.
The Director adds three points:
- Decisions to prosecute are only taken where police investigate an allegation of criminal conduct and the evidence obtained provides a reasonable prospect of conviction. The Prosecution must reach a very high level of proof, i.e. beyond reasonable doubt.
- Most cases involving the medical profession in criminal trials are of gross negligence manslaughter and misconduct in public office. The threshold for commission is high. The Director points out that: ‘such are the demands on the medical professions and the complex clinical judgments that have to be made, often under considerable pressure, that it is recognised in criminal law that practitioners will in good faith make “errors and misjudgements.”’
- In assessing what can be proven in any individual case a prosecutor will have regards to all the relevant facts and circumstances. The unprecedented challenges posed by the COVID-19 pandemic would be extremely relevant with contextual circumstances carefully weighed should a prosecution file ever be submitted.
Crown Prosecution Service
The Crown Prosecution Service [England and Wales] (CPS) consider that the concerns we raise fall outside their remit but lie within the remit of the Department of Health and Social Care and have passed our letter onwards. The CPS are responsible for reviewing and, when appropriate, prosecuting most criminal cases in England and Wales. They provide legal advice to the police.
Office of the Crown Office and Procurator Fiscal Service
Our letter has been passed to the Lord Advocate’s office and we await a reply.
Chief Coroners
No replies have been received.
Summary
The Association and ICS have raised their members’ concerns about the risk of regulatory, civil and criminal prosecution of anaesthetists and intensivists during and in the wake of the COVID-19 pandemic. In essence we have placed a line in the sand. Our regulators demonstrate appreciation of the complexity of the situation anaesthetists and intensivists face and offer a degree of reassurance. However, those responsible for civil and criminal prosecution have chosen to defer or not reply and others have taken a stance behind their statutory roles.
We will continue to advocate for and support our members on this very important issue and will update this page as new advice is received. In the meantime, we suggest that our members follow their regulators’ codes of conduct and clinical guidance relating to COVID-19 specific guidance. We are happy to receive correspondence from members on the matter.
1. The Attorney General [England and Wales], the Director of Public Prosecutions [England and Wales], the Director of Public Prosecutions [Ireland], the Public Prosecution Service for Northern Ireland, the Office of the Crown Office and Procurator Fiscal Service [Scotland], the Chief Coroner [England and Wales], the Coroners Service for Northern Ireland, the Coroner’s Society for Ireland, the General Medical Council and the Irish Medical Council
Further reading:
A Medical Protection Society commissioned survey reveals strong public support for doctors who may face regulatory or criminal investigation in the wake of COVID-19.