The exceptional circumstances of dealing with COVID-19 must not be forgotten

MDDUS is urging the UK Government to create an expert advisory committee to make recommendations as to how potential concerns over clinicians’ behaviour in delivering care can be considered fairly

IN early April, one of MDDUS’ retired members described to me the feeling of returning to work as a doctor during the COVID-19 emergency as being like “the deep breath before the dive”.

This powerful and vivid spoken image has remained with me ever since. The sense it evoked of a full commitment to venturing headlong into potentially unknown peril captured the courage of healthcare professionals as the nation grappled with the pandemic.

Of course, the sense of duty and bravery shown by workers right across the National Health Service was applauded – loudly, every week – the length and breadth of the United Kingdom. The impact of COVID-19 on the NHS cannot be underestimated. It has had to reorganise and re-orientate. And, despite some glitches, the 72-year-old service coped, not least with the active co-operation of the private sector.

But as the leader of a mutual defence organisation, it’s my job to take a critical view of how long the halo effect for our doctors will last. And what, when it likely slips, the impact will be on our members.

In particular for those who couldn’t provide their services in the normal way and who may not be able to do so for some considerable time yet, and those who were asked to work right at the edge of – and sometimes beyond – the normal limits of their competency.

In MDDUS’s view the best way to answer this question is to put it in the hands of independent experts. And that’s why we, with cross-party support from MPs, are urging the Government to act on our call for the creation of an expert advisory committee to make recommendations as to how the full range of concerns about clinicians’ behaviour – negligence claims, regulatory complaints, disciplinary investigations and patient complaints – arising from care delivered during the COVID-19 outbreak can be considered fairly.

MDDUS is also of the view that this can be done in a way which not only upholds, but also strengthens, the principles of transparency and patient safety.

We don’t follow the logic of those who argue for some kind of total suspension of all redress mechanisms: that seems to us to strike the wrong balance between professional and patient rights.

But we do consider it important that the conditions in which the profession worked at the height of the national emergency, and the continuing very fraught conditions, are recognised in both procedures and substantive rules to reduce stress and uncertainty for all concerned.

Philippa Whitford MP, the SNP’s health spokesperson and a member of MDDUS, is one of the key supporters for our call for an independent expert advisory committee. Speaking to me before the height of the COVID-19 crisis, she predicted the pandemic would cause healthcare professionals trauma, not only from what they saw but also from the difficult decisions they would have to make.

As one of our members, she wrote an open letter to the health and social care secretary, Matt Hancock, and Robert Buckland QC, the justice secretary, asking them to agree to establish an independent expert advisory committee. I hope the delay in any response is due to the matter getting the serious consideration it deserves.

As Whitford explains: “It is critical that we ensure patients are protected while doctors, working under unprecedented pressures, are not left exposed.

“At the moment everyone is aware of the stress and challenge faced by NHS staff but that memory will fade. It is important that the exceptional circumstances of dealing with the COVID-19 pandemic are not forgotten when using hindsight to judge medical decisions or actions.

“An advisory committee could lay out specific guidance to achieve a fair balance between protecting patients’ rights and taking into account the situation in which doctors were having to work.”

Personally, I find it incredible how quickly some people seem already to be forgetting what we were facing in March, and the scenes from Italy which preceded it. And I worry that clinicians will not be judged fairly for the difficult decisions they had to take, or the situations they were having to work in at the peak of COVID-19.

I absolutely acknowledge the current proactivity of the GMC in this arena, and believe that its commitment to handling COVID-19 complaints via a “separate track” is very welcome.

Documenting and communicating that more widely and setting it into the broader context of a set of independent recommendations to enable sensible advance planning would, I think, be extremely helpful.

I have also been heartened by the response to my letters earlier in the year to the law officers responsible for the management of the prosecution of any COVID-related litigation against clinicians. The Lord Advocate James Wolffe QC commented that “the Crown in Scotland will be conscious of the challenging circumstances in which healthcare staff have been operating” and added that “those circumstances will be taken into account where that is relevant to the decisions which the Crown must make.”

There seems to be a consensus that, even if it’s becoming a well-worn cliché, we are entering a "new normal". Many clinicians also believe there will be at least a one or two year tail from COVID-19, meaning the kind of care doctors are providing today – and the risks they are exposing themselves to – will be in place until they become simply “normal.”

While the advance planning for a pandemic such as COVID-19 was rather limited, we owe it to all our frontline clinicians – especially those who have had to make difficult decisions about patients’ treatment – to plan well for its aftermath.

MDDUS will continue to press government on this issue to ensure doctors can have peace of mind they will be treated fairly in the case of a complaint, litigation or regulatory process, while patients are reassured their interests are protected.

Chris Kenny is CEO of MDDUS

This article first appeared in BMJ Opinion on 4 September 2020. Access here.