COVID‐19: legal implications for critical care

Abstract

The COVID-19 pandemic has caused an unprecedented challenge for the provision of critical care. Anticipating an unsustainable burden on the health service, the UK Government introduced numerous legislative measures culminating in the Coronavirus Act, which interfere with existing legislation and rights. However, the existing standards and legal frameworks relevant to critical care clinicians are not extinguished, but anticipated to adapt to a new context. This new context influences the standard of care that can be reasonably provided and yields many human rights considerations, for example, in the use of restraints, or the restrictions placed on patients and visitors under the Infection Prevention and Control guidance. The changing landscape has also highlighted previously unrecognised legal dilemmas. The perceived difficulties in the provision of personal protective equipment for employees pose a legal risk for Trusts and a regulatory risk for clinicians. The spectre of rationing critical care poses a number of legal issues. Notably, the flux between clinical decisions based on best interests towards decisions explicitly based on resource considerations should be underpinned by an authoritative public policy decision to preserve legitimacy and lawfulness. Such a policy should be medically coherent, legally robust and ethically justified. The current crisis poses numerous challenges for clinicians aspiring to remain faithful to medicolegal and human rights principles developed over many decades, especially when such principles could easily be dismissed. However, it is exactly at such times that these principles are needed the most and clinicians play a disproportionate role in safeguarding them for the most vulnerable.

Work of a paediatric bioethics centre during the COVID-19 pandemic first phase

“… 15 PBC members authored a BMJ Blog about the function of ethics committees and chaplaincy support during the pandemic, 16 and an article on the adult ICU legal situation. 17 …”

“…15 PBC members authored a BMJ Blog about the function of ethics committees and chaplaincy support during the pandemic, 16 and an article on the adult ICU legal situation. 17 Box 1 Challenges children's hospital staff faced during the pandemic ► Challenges meeting personal obligations to safeguard family at home and continue to meet professional obligations to continue to work. ► Risk of exposure through working with inadequate personal protective equipment.…”

Take-Home Messages from the COVID-19 Pandemic: Strengths and Pitfalls of the Italian National Health Service from a Medico-Legal Point of View

“…The professional would therefore be exempted from any compensation obligation pursuant to Articles 1218 and 1256 of the civil code. These laws are more easily applied within the context of personal liability as opposed to the liability of facilities, which are obliged to demonstrate their inability to fulfill their duties due to (objectively) unpredictable and unavoidable causes [ 29 , 30 ], to a crisis and to an inability to ensure the standard of care previously delivered [ 31 , 32 , 33 , 34 , 35 ]. To that end, Article 2236 of the civil code may be invoked, which sanctions that “ If performing the service requires the solution to particularly difficult technical problems, the service provider is not liable for damages in the absence of malicious misconduct or gross negligence.…”

Systematic review: bioethical implications for COVID-19 research in low prevalence countries, a distinctly different set of problems

“…Common themes in literature from high COVID countries when dealing with the concept of reciprocity among deployed health clinicians, surrounds the concept of increased clinician risk without a parallel increase in compensation and consideration [ 24 , 25 ]. Other authors [ 26 , 27 ] raise the possibility of medical negligence in terms of deployed clinicians delivering a lower standard of care compared to pre-COVID.…”