In late March, as the UK went into lockdown, the news was dominated by images of Italian hospitals overwhelmed by COVID-19 patients. It was feared that the same would happen here, particularly given the existing pressures on the NHS. Among lawyers, there were debates about the legal implications of prioritising treatment, should the demand for medical care outstrip available resources. These debates remain important today. While the UK’s experience has not mirrored Italy’s, there have been difficulties. Dozens of patients were reportedly turned away from the NHS Nightingale Hospital London because of a shortage of nurses. On Twitter, nurses and doctors working in ICUs have described shortages of dialysis fluids and medications used in the treatment of COVID-19 patients. In an apparent attempt to prevent hospitals becoming overwhelmed, letters were sent by some GPs and Clinical Commissioning Groups (CCGs) to care homes, stating that their residents should not be brought to hospital and should be made subject to ‘Do not resuscitate’ orders. It seems likely that treatment prioritisation decisions have already been made. Further, as lockdown fatigue sets in and social-distancing rules are relaxed, the potential for a second wave of COVID-19 cases is very real, as is the need for clarity as to how the NHS should respond if demand for intensive care resources exceeds supply.

Ever-decreasing circles? The guidance on treatment prioritisation

A plethora of guidance has been published by various bodies, including the National Institute for Health and Care Excellence (NICE), Royal College of Physicians (RCP), British Medical Association (BMA), General Medical Council, Royal College of Paediatrics and Child Health, and Intensive Care Society. However, none of these documents actually provide clear guidance on how to make prioritisation decisions. Arguably, such guidance ought to be provided by the Secretary of State and/or NHS England (in England), given their overarching responsibility for the NHS.

For example, NICE’s COVID-19 rapid guideline tells a clinician how to decide whether a patient will benefit from intensive care; it does not tell her what to do if there are insufficient resources to treat all those who would benefit. Despite this, both the NHS’s Clinical guide for management of critical care for adults with COVID-19 during the coronavirus pandemic and RCP’s Ethical dimensions of COVID-19 for frontline staff refers the reader to the NICE document for guidance on prioritisation decisions. The NICE document refers readers back to the RCP guidance, and so the confusion continues.

The BMA has come closest to producing actual guidance on treatment prioritisation. The BMA’s COVID-19: ethical issues note provides:

‘[I]t is likely that priority will ordinarily be given to those whose conditions are the most urgent, the least complex, and who are likely to live the longest, thereby maximising overall benefit in terms of reduced mortality and morbidity. The presence of co-morbidity may exclude individuals from eligibility...To maximise benefit from admission to intensive care, it will be necessary to adopt a threshold for admission to intensive care or use of scarce intensive treatments... Relevant factors predicting survival include severity of acute illness, presence and severity of co-morbidity and, where clinically relevant, patient age. Those patients whose probability of dying, or of requiring a prolonged duration of intensive support, exceeds a threshold level would not be considered for intensive treatment, though of course they should still receive other forms of medical care.’

However, this raises more questions than it answers. Most importantly, what will the ‘threshold’ be, above which admission to intensive care or provision of specific treatments will not occur, and who will decide this?

Discrimination and treatment prioritisation

Concerns have been raised about discrimination against older people and disabled people in treatment prioritisation decisions. This is understandable, given the letters sent to care homes and the well-documented fact that people with learning disabilities experience barriers to accessing healthcare, poorer healthcare outcomes and die younger than the general population, even in normal times. In fact, NICE’s first COVID-19 guidance was withdrawn after being challenged for being discriminatory in relation to the application of a ‘Clinical Frailty Scale’.

The BMA framework, set out above, is also potentially discriminatory. For example, without further clarification, the emphasis on treatment of the ‘least complex’ cases could lead to de-prioritisation of autistic patients who may have behavioural traits that make them ‘challenging’ to treat. The reference to ‘maximising overall benefit’ could result in quality of life assessments being smuggled in, such that saving the life of a disabled person is not seen as ‘maximising benefit’. If ‘co-morbidity’ is interpreted to include certain forms of impairments, application of this framework will place disabled people at a disadvantage compared to non-disabled people. Similarly, taking into account the ‘duration of intensive support’ a person may need is likely to place certain disabled people at a disadvantage, because they are likely to need a longer period in intensive care as a result of their impairments.

The BMA note recognises the potential for indirect discrimination (see s 19 Equality Act 2010) but concludes the framework can be justified as a proportionate means of achieving a legitimate aim, ‘namely fulfilling the requirement to use limited NHS resources to their best effect’. This is clearly a legitimate aim. Whether the BMA note sets out a proportionate means of achieving that aim is not clear, given its uncertain meaning. There is a desperate need for a national framework, developed in partnership with disabled and older people, that properly grapples with the potential for discrimination in treatment prioritisation. Any national framework should address not just indirect discrimination, but also the duty to make reasonable adjustments and discrimination arising from disability: see ss 15, 20, 21 Equality Act 2010.

Human rights and treatment prioritisation

The lack of clear, national guidance on treatment prioritisation also has human rights implications. Article 2 ECHR (right to life) places a positive obligation on the state to ensure the effective functioning of a regulatory framework for healthcare, in order to protect lives: Lambert v France (ECtHR App No. 46043/14and Lopes de Sousa Fernandes v Portugal (ECtHR App No. 56080/13). It is arguable that the failure of the Secretary of State to adopt a national framework that regulates prioritisation decisions is a breach of this positive obligation.

In addition, the lack of clear guidance could lead to breaches of Article 8 (right to private and family life) of the European Convention on Human Rights (ECHR). ‘Private life’ is a broad concept, encompassing, inter alia, a  person’s physical integrity: McDonald v UK (ECtHR App No. 4241/12). Although an interference with a person’s Article 8 right can be justified, this is only the case if the interference is ‘in accordance with the law’. To be ‘in accordance with the law’, the law (or policy) which mandates the interference must be accessible and its application foreseeable. In the absence of a clear, nationwide policy as to treatment prioritisation, it is arguable that any interference with an individual’s right to private life, through the refusal or withdrawal of treatment, will not be ‘in accordance with the law’. Further, as explored above, without a national framework, there is heightened potential for discrimination in treatment prioritisation, which would breach Article 14 ECHR, read together with Article 2 and/or Article 8.

There are, understandably, grave concerns about the lack of adequate national guidance on treatment prioritisation in the UK. Two solicitors’ firms, Rook Irwin Sweeney LLP and Bindmans LLP, acting on behalf of disability campaigners, have sent letters before action to the Secretary of State and NHS England, arguing that the failure to issue national guidance is unlawful on various grounds (including those mentioned above). No claim has yet been issued, but the court may well be asked to rule on whether a national framework for treatment prioritisation is a legal requirement in the near future.