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COVID-19 pandemic highlights need for reform of the medical legal system

Fri 20 November 2020

Nightingale Hospital, Western Gateway, London, UK

According to a new paper published today in the Journal of the Royal Society of Medicine by Dr Arpan Mehta (Anne Rowling Regenerative Neurology Clinic, University of Edinburgh), Dr Tamás Szakmany (University of Cardiff) and Ms Annie Sorbie (Edinburgh Law School), the COVID-19 pandemic has shone a spotlight on pre-existing issues in the legal framework that surround healthcare professionals and patients, encouraging action to be taken now.

During the COVID-19 pandemic, many doctors and other healthcare professionals have worked in unfamiliar surroundings and been assigned to new clinical areas, while balancing an unprecedented workload and addressing an overall lack of knowledge about the virus itself. This has led to concerns that there may be an increase in complaints about treatment provided in these circumstances, and competing arguments on how these should be handled within the criminal, civil and regulatory system. Some have advocated that healthcare professionals in the UK should be granted temporary immunity from civil and criminal liability for the duration of the pandemic, as has been done in New York state.

‘We argue that temporary immunity is not a suitable solution,’ says Dr Arpan Mehta. ‘COVID-19 is not the genesis of the issue; it has only brought to light pre-existing problems. Clinical negligence claims are a professional, financial, emotional, and administrative burden on the healthcare system, as well as distressing for patients and their families, who rarely see concrete changes being implemented in the aftermath of their cases.

‘A restorative approach in the aftermath of incidents, which holds people accountable by looking forward at what must be done to repair, to heal and to prevent reoccurrences would be more appropriate in order to shift from a culture of blame, to one of learning,’ says Mehta, pointing out that a 2019 report by NHS Resolution argued for such a system. ‘If healthcare professionals do not feel that they are working in a supportive environment or, worse still, are operating in a climate of fear about the repercussions of their work during the pandemic, not only will they suffer, but ultimately it will have a knock-on effect on patient care.’

‘The General Medical Council (GMC), which regulates doctors, has recently issued pandemic guidance in line with this approach – difficult decisions should not, as far as is practicable, fall on one clinician’s shoulders. Circumstances of the pandemic will be considered when assessing any referrals of misconduct to the GMC on a case-by-case basis. This is a delicate balance to strike, but preventing patients from making complaints would be a draconian measure that would be incompatible with the GMC’s objective and function.’

Another area of concern is the impact on both BAME healthcare professionals and BAME patients of clinical negligence cases and referrals to the regulator. BAME healthcare professionals are disproportionally represented in claims of clinical negligence and complaints to the GMC; research commissioned by the GMC before the pandemic has indicated that doctors who are ‘outsiders’ may be at particular risk. However, attempts to limit access to redress could also impact on BAME patients, who have been disproportionally affected by COVID-19.

‘Unfortunately, COVID-19 is a disease that does discriminate,’ says Dr Mehta. ‘There is the potential for frontline BAME healthcare professionals to be ‘double hit’ by COVID-19; on the one hand, they are subjected to disproportionate personal medical risks from COVID-19, and on the other hand, they may be at greater legal risk as well. The latter needs to be carefully monitored and mitigated against at all levels in the healthcare system.’

‘We call on the government to urgently facilitate an independent public enquiry with key stakeholders to address the persistent medicolegal issues revealed by COVID-19,’ says Dr Mehta. ‘The focus in this domain so far has been on protecting doctors with temporary immunity provisions, but a longer-term solution would be to promote a just culture of learning that supports the needs of both doctors and patients. The fragility of these roles has been laid bare by the pandemic, where caregivers have become patients and members of the public have stepped up to support the delivery of NHS services – we need a system that is flexible, inclusive and properly monitored to drive change.’

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