Without government guidance or PPE, doctors will have to make more unpopular choices about which lives to save

The government urgently needs to publish clear criteria so medics can carry out principled triage, writes David Lock and Vikram Sachdeva

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Even outside of pandemics, the NHS lawfully rations access to healthcare because there is a limit to the ability of the NHS to deliver a service to meet every clinical need. Parents seeking to conceive via IVF are well aware of these constraints, as are oncology patients who may be denied expensive life-extending drugs, or patients with rare diseases where the cost of treatment is prohibitive.

However, the NHS does not only grapple with financial constraints. The supply of donated organs never fully meets demand. Transplant surgeons quietly but efficiently operate prioritisation rules which govern who does and does not get access to scarce donated organs, with those denied invariably dying. The Court of Appeal recently decided those rules were lawful.

In these cases, doctors make decisions which result in potentially beneficial medical treatment being denied to patients. Why is the doctor who makes this decision not acting in breach of his or her duty of care to the patient? The answer is that doctors operate lawfully with a “menu” of options to treat a patient, but with some treatments deliberately kept off the menu because they are too expensive or for other reasons.

This way of taking decisions has been repeatedly upheld by the courts here, as elsewhere. The same constraints arise in an insurance-based system, but the items on the menu are decided by an anonymous commercial insurance company, not by a legally accountable public body. Medicine without financial constraints is only available to those with unlimited wealth.

These well-established principles will come under huge stress in the coming weeks as the pandemic increases demands on the NHS, with an inevitable collision between what doctors want to offer to each patient and what they can offer. The NHS has limited intensive care beds, ventilators and, just as importantly, a limited number of clinicians who can treat Covid-19 patients. While efforts are being made to increase capacity, resources will remain finite, however successful the expansion plans. Thus, doctors will be forced to make difficult choices about which patients should be given the chance of life by being referred to ITU for ventilation, and which patients should be denied that chance despite the inevitable increase in their chance of death.

The government urgently needs to publish clear criteria to guide doctors so they can carry out principled triage. Even with clear, national criteria triage will be challenging for clinicians and unpopular with patients and their relatives. But national criteria are likely to lead to fairer decisions than leaving it to individual clinicians to fashion their own guidance. Clinicians will ask themselves who can benefit quickly from a higher level of medical intervention, with the aim to use the limited intensive care services to deliver the maximum amount of good to the maximum patients. Doctors will inevitably make mistakes, but the courts are likely to recognise the pressure doctors will be working under and give them a wide margin of discretion to decide who lives and who dies.

No single criterion can operate as a hard exclusionary factor and there can be no fixed-age cut-off. A fit 75-year-old cannot be denied the possibility of treatment purely on the basis of age. However, when considering an escalation of treatment, other factors such as comorbidities, frailty and the age-related deterioration of the body’s ability to fight the virus are all legitimate considerations for a doctor deciding who is likely to recover quickly.

Differential treatment based on disabilities or advanced age is sadly likely to be lawful because the courts will approve a broadly utilitarian approach, and because those characteristics are associated with less benefit to the patient. That is also likely to be disadvantageous to the poor who start this process with greater levels of long-term conditions and in generally poor health.

A utilitarian approach may also justify giving priority to those whose jobs are focused on saving lives or who have been exposed to the virus whilst discharging their public duties. It instinctively feels right that a doctor or nurse who contracts the virus while treating patients should be prioritised for life-saving treatment, not just to get that person back to work to save others, but particularly if a clinician has contracted the virus due to a lack of Personal Protective Equipment.

David Lock QC is a barrister at Landmark Chambers and Vikram Sachdeva QC is a barrister at 39 Essex Chambers