U.K. Faces Court Fight on Life and Death Care as Suits Mount
Who Goes Into Intensive Care? U.K. Legal Challenges Stacking Up
(Bloomberg) --
Once the scourge of Boris Johnson’s administration in the run-up to Brexit, legal challenges are stacking up again amid the coronavirus crisis.
The U.K. has seen at least six potential lawsuits, known as judicial reviews, within the last three weeks, targeting the lockdown restrictions and how doctors should prioritize treatment. This week two challenges were started to force the government to explain what would happen if hospitals start to run out of intensive care space -- with the deadline extended to Friday evening.
Most of the cases have been brought on behalf of people with disabilities and the government has already made some changes in response. Rules on exercise and travel for those with specific conditions, such as autism, were relaxed after a review was threatened.
“The government doesn’t seem to have anticipated it or seen these challenges coming,” said Daniel Sokol, a lawyer and medical ethicist. “I can’t remember a time when disability rights activists have made such a concrete difference to decision-making.”
The surge in court cases will bring back difficult memories for Johnson, who faced a series of judicial reviews over his plan to leave the European Union. One case, over his ability to temporarily suspend Parliament, led to a painful defeat at the U.K. Supreme Court.
Stung by the high-profile loss, Johnson said in January he wanted to ensure judicial reviews weren’t used “to conduct politics by another means or to create needless delays.” But the pandemic put those plans, and most other legislative priorities, on the back burner while the government focused on combating Covid-19.
Britain’s National Health Service has rushed to expand intensive care units by converting existing wards and building from scratch the giant Nightingale hospitals in empty conference centers.
It’s all designed to prevent a surge in cases overwhelming hospitals and the government has said admissions are starting to stabilize. Officials have said that they don’t expect to run out of intensive care capacity, especially with the new facilities.
But the government and its health agencies including the National Institute for Health and Care Excellence have “nothing meaningful to say” on how doctors should decide who they treat if they run out of intensive care beds or the ventilators needed to keep patients breathing, lawyers said in a formal letter before claim.
“If you don’t have proper national guidance, then what happens is that every single hospital trust has to come up with their own guidance,” said Michael Mylonas, an attorney who’s worked on some of the U.K.’s most high-profile care cases. “You will end up with different standards applied across the country. And that’s not fair for doctors and it’s also not fair for patients.”
One of this week’s cases was brought by Doug Paulley, 42, who uses a wheelchair after suffering from nerve damage. He fears doctors will decide not to treat him.
“This is an extremely worrying time as it is for all disabled people,” he said. “I understand that difficult decisions will have to be made, but at the moment we just don’t know how doctors are going to prioritize life-saving treatment for coronavirus.”
Paulley, who lives in England’s north east is pushing the health department and the National Health Service to lay out in detail how doctors would prioritize treatment and take into account people with a far wider range of disabilities.
The health department said it couldn’t comment on ongoing legal proceedings, “and this does extend to guidance which may or may not be under challenge.” NHS England didn’t respond to phone calls and emails seeking comment.
With the deadline approaching, Sokol warned that the government may try to avoid publishing national advice on triage decision-making, by claiming this would be premature.
“I don’t think there’s a political appetite to disclose a document like this because it’s grim and deflating to contemplate a nightmarish scenario where tragic decisions may be necessary.”
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