The legal context
| During the first peak of the pandemic, aspects of medical law other than the familiar topics of medical negligence, euthanasia and confidentiality came to the fore. Healthcare providers, doctors, public health officers, care home managers and many more were forced rapidly to consider how the law governs people and resources during an extreme public health challenge that poses risks to all, but to some more than others.6,7 It became clear we have a legal system that accommodates the social impulse, in an emergency, to use available resources to save the most lives. But fortunately for the weak, vulnerable, and minorities, the law imposes checks, balances and limits, so utilitarian reasoning cannot override all other concerns. Although far from perfect, our legal system, under the Human Rights Act of 1998, protects cornerstone fundamental human rights, including an individual's right to life, their autonomy, their movement and their equality, while simultaneously striving to give appropriate weight to other more public interests, such as priority-setting, monitoring and surveillance, and compulsory detention to protect other people from infectious disease. A significant example during the first wave of the pandemic was the rapid development of policies for allocation of ventilators, dialysis machines, and intensive care unit (ICU) beds. The law largely, but not entirely, leaves decisions about the distribution of scarce healthcare resources to policy makers and administrative agencies, respecting the political judgments that must be made. However, the State cannot cause degrading treatment, and it must protect patients from intentional deprivation of life. The extent to which doctors can manipulate a patient's body without their consent is also legally limited. These legal conditions, enforceable under the Human Rights Act 1998, judicial review and potentially the law of negligence and criminal law, meant that the NHS could decide which of two patients should be allocated a ventilator, provided their decision was reasoned and transparent, but could not remove a ventilator from a patient simply because they were only slowly recovering and a stronger patient needed it. These important conditions serve to protect people. The Equality Act 2010 further ensures that allocation decisions do not disadvantage people because of a protected characteristic, such as a disability (eg diabetes, cancer or lung disease). It also requires evidence that a COVID-19 policy is proportionate means of achieving a legitimate aim if it has the indirect effect of disadvantaging people with disabilities, the elderly or people of certain races, and that reasonable adjustments are made so that people with disabilities are not placed at a substantial disadvantage.8 Outside acute care, the pandemic has had a massive impact on care homes, where residents often lack decision-making capacity. Fortunately, the Mental Capacity Act 2005 provides a well-established framework in these situations to ensure decision-making is based on residents’ best interests rather than expediency. Procedures involving external review must also be followed if actions to isolate a resident mean they are deprived of their liberty (eg locked doors). The area of law known as administrative law, or judicial review, further holds public bodies to account. curbing misuse of powers. Judges can be asked to quash decisions which lack reasons or due process. For example, after a ‘letter before action’ from solicitors for the Cystic Fibrosis Society, the National Institute of Health and Care Excellence (NICE) adjusted a policy that initially recommended a frailty score tool for prioritisation of ICU resources without pointing out that the scoring system had not been validated for non-elderly patients such as younger people with stable long-term disabilities (for example, cerebral palsy), learning disabilities or autism.9 These and other features of the law support the commitments and actions recommended in this article, while not making them specifically mandatory. A conscientious desire to learn and act ethically is still the most important driver of change. |