Dr James Watts and Dr Carole Pilkington, Consultants in Anaesthesia and Critical Care Medicine at Blackburn Royal hospital, offer guidance concerning ethical decision making during the current pandemic
Medicine is practised within a legal, professional and ethical framework. This framework may not give specific answers in specific situations, but is a general set of principles to which we are expected to practice. These principles are set out in a number of historic and current publications, including the General Medical Council’s (GMC) Good Medical Practice (1). The overwhelming messages contained in Good Medical Practice are that a good doctor will:
- Make the care of the patient their first concern
- Be competent and keep their professional knowledge up to date
- Take prompt action if it is felt patient safety is being compromised
- Establish and maintain good partnerships with patients and colleagues
- Maintain trust in themselves and the profession by being open, honest and acting with integrity
- Despite improvements in treatment, diagnosis and guidance, legal claims and complaints against doctors and the health service in general continue to rise (2,3) associated with a variety of factors, including greater access to information via the internet, social media, and general media pressure.
The main concern for doctors in relation to complaints and possible legal action even in normal circumstances is that medicine is practiced within a world where everything is shades of grey, where a diagnosis may evolve or completely change as more information not immediately available becomes apparent; whereas the scrutiny of any complaint seems to occur in an environment where there is assumed to be only black and white, right or wrong, competence or incompetence. To a doctor in such circumstances, the legal rulings that confirm that while a single clinical incident could be serious enough to reach the threshold of “misconduct” that “mere negligence” on its own does not, unless particularly grave (4), is of little comfort. The Bawa-Garba case has done much to undermine doctor’s belief that regulators and courts will take the context in which decisions were made into account (5).
These anxieties are magnified when the normal systems break down: so-called “compensated major incidents”, where extra resources are mobilised due to the fear that otherwise live casualties will be lost. This may involve the suspension of normal services and the creation of new processes, roles and ways of working. The current Covid-19 pandemic is such an incident, where working practices have been changed due to the health service being at risk of collapse. As a result, doctors are working in unfamiliar job plans, possibly in unfamiliar roles, in a stressful environment when they themselves are at risk (6).
As a result of this concern locally, we were tasked with producing some guidance concerning ethical decision making during the current pandemic. We decided to produce a set of easily digestible bullet points rather than a larger document that would take longer for an individual to review. With a view to helping to reassure others, we reproduce our guidance below.
- We are currently working in highly unusual conditions. However, even in testing times we are not being asked to make any decision that we do not make every day under normal circumstances, although we may be asked to make them with reference to different treatment thresholds, or very quickly, or both.
- Adhering to our normal practice, no matter how constrained, is the best way to make a decision that can be justified, based on what the circumstances at the time were
- When the system is under strain, we may not be confident that we have adequate time, information or resources to make the correct decision
- However, it is important whatever the circumstances that we try and ensure that all decisions are equitable and fair, evidence-based and open and transparent based on the information that we have at the time we made them
- It is acceptable to identify those who will most benefit from a certain treatment, and also to identify those who are unlikely to respond. The British Medical Association calls this the ‘capacity to benefit quickly’ test (7)
Equitable and fair
- Avoid any clinical decision made on assumptions or simple cut-offs (eg, age) that may appear to be discriminatory
- Make any treatment decision logically based on the information you have been able to obtain in the time that you have available
- All life is equally valuable: but that does not mean that not all patients should receive the same treatment. For example, not all patients with pneumonia will benefit from ventilation
- There may be a range of different opinions as to the right course of action in any particular circumstance. If you are unsure about the correct decision, ask a colleague their opinion, in the same way that you would if you were experiencing technical difficulty with a procedure. If the hospital has a Local Ethical Committee, you may be able to make use of that.
- The evidence you have available to support your decision may be affected by expediency and the time available. This is not your fault.
- It is always possible that the decision you make turns out to be, in retrospect, incorrect. Providing you made a logical and reasonable decision supported by the evidence you had available at the time, this is acceptable. Being reckless, or discriminatory, is unacceptable.
- No-one can be right all the time. However, by basing your decision logically on evidence to hand, you will ensure that you made the best decision you could at the time you made it.
- Remember: procrastination is a decision in itself
- Evidence includes but is not limited to: Information available from the patient, relatives, paramedics, notes, clinic letters, GP notes, previous test results, etc; and any examination performed and any response-positive or negative-to treatment
- Use this evidence to make the best decision you can at the time, to the best of your knowledge and belief. Remember: you only know what you know at the time. If new information comes to light later which would have resulted in a different course of action, you did not know it at the time, and so it could not have influenced your decision.
- Covid-19 guidelines are being created based on current evidence, which is subject to change and which may only represent a collection of opinion. Remember, guidelines are only guidance and represent what is thought to be ‘best practice’ – not ‘acceptable practice’. Acceptable practice is just that: acceptable. The legal standard required of practice is that it is logical, and would have been provided by a body of doctors of similar experience and standing.
- Remember that many guidelines make the assumption that the patient has only one illness at a time. The presence of another disease process may render the guideline inappropriate, in whole or in part. Guidelines are in fact nothing more than ‘Plan A’. If Plan A does not work, then you move to Plan B, which you may have to create at the time. If you need to deviate from a guideline, then record your reasoning in the records
Open and transparent
- If possible, keep the patient informed and involve them in your decision. Try and communicate with relatives appropriately if you can.
- Record your decision in the notes. You have thought long and hard about the right course of action, and so it is worth preserving.
- A record should be clear, unambiguous, and logical. Make clear what information you have, and why the decision was made.
- Bullet points are acceptable. You do not need to write War and Peace. You only need to indicate what information you had, and why you made a particular decision
You cannot help patients if you become a casualty yourself. If resources are not available to allow you to practise safely, bring it to the attention of more senior or more responsible staff as soon as you can. Be aware of your own, and colleagues’ health, particularly in relation to stress, and take appropriate action.
Longer term advice and support is available from the BMA, and your Medical indemnifier (8, 9,10).
- GMC Good Medical Practice (2013)
- Crawford ANHS faces huge clinical negligence legal fees bill BBC online news 21/01/2020 / https://www.bbc.co.uk/news/health-51180944
- MPS Complaints Culture MPS website 25/08/17 / https://www.medicalprotection.org/uk/articles/complaints-culture
- Calhaem v GMC  EWHC 2606 (Admin)
- Bawa-Garba: timeline of a case that has rocked medicine Pulse 10/04/19 / http://www.pulsetoday.co.uk/news/gp-topics/gmc/bawa-garba-timeline-of-a-case-that-has-rocked-medicine/20036044.article
- Haynes L Doctors vulnerable to legal challenge during COVID 19 pandemic, experts warn GP / https://www.gponline.com/doctors-vulnerable-legal-challenge-during-covid-19-pandemic-experts-warn/article/1680272