The COVID-19 pandemic posed unprecedented challenges to healthcare professionals in both the NHS and private sector. New approaches were adopted in the first phase of the COVID-19 response, and healthcare professionals were required to quickly adapt their working practices. The general impact of COVID-19 on Healthcare in the UK has been widely reported. Such impacts include the suspension of some elective treatment due to the increased pressure on hospital capacity, and delays to treatment in the private sector as healthcare professionals increased their NHS workload.
Whilst the period of lockdowns has passed, and as life seems to be returning to normal for many, the full impact of COVID-19 on Healthcare professionals is still not fully understood. We are continuing to receive enquiries relating to patient care in the context of COVID-19, in particular as to whether treatment can reasonably be refused in cases where patients seeking treatment are either unvaccinated or elect not to wear facemasks.
In one example a surgeon had received a formal complaint after refusing treatment to an elective cosmetic surgery patient. Colleagues of the surgeon in private practice also worked in the NHS and were involved in the care and treatment of critically ill patients. The surgeon advised the patient, who was unvaccinated and therefore remained at risk of infection and/or illness due to COVID-19, that offering non-essential surgery would present an unnecessary and avoidable danger not only to them but also other patients.
In other cases clinicians have received patient complaints after refusing to provide face-to-face treatment to patients who elected not to wear a mask without providing evidence of a medical exemption.
In September 2020, the General Medical Council (GMC) issued guidance for its staff detailing how to take the context created by COVID-19 into account when considering complaints about doctors, including:
The guidance also sets out factors that may indicate that an allegation about a doctor in a clinical setting during the pandemic does not raise a question about their fitness to practise. For example where the doctor’s actions or decisions were a reasonable response to the pandemic, or where guidance with which they might usually be expected to comply was lacking, inconsistent or unclear, or where the guidance did not anticipate the unusual circumstances that arose.
Finally, the guidance sets out examples of allegations that are unlikely to raise a question of impaired fitness to practise because the doctor’s actions and/or conduct were reasonable in the circumstances of the pandemic. For example a doctor making a decision to deny access to treatment in the circumstances of the pandemic at the time. However, such a decision would need to be weighed against the GMC’s Good Medical Practice guidance that doctors must treat patients fairly and with respect whatever their life choices and beliefs, which could apply to patients who have made a conscious decision not to have the COVID-19 vaccine or wear a face mask.
Clinicians must exercise reasonable care and skill when providing treatment to a patient. Whether or not a clinician would be in breach of their common law duty of care in refusing to treat a patient is nuanced, with various factors to be considered in the context of each individual case. At the heart of this question will be the nature of the relationship between the clinician and the patient, and the degree to which the patient has been encouraged by the clinician to rely on the clinician for their treatment and care.
The Bolam test would be the first step in considering whether a clinician has met the requisite standard of care, namely whether they “acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art” (Bolam v Friern Hospital Management Committee  I WLR 582). However, the case of Bolitho established that a clinician could be in breach of their duty of care if it is not demonstrated that the body of opinion relied upon was reasonable or responsible (Bolitho v City and Hackney Health Authority  4 AII ER 771).
In the ruling of Montgomery v Lanarkshire Health Board  AC 1430, Lady Hale stated that “most decisions about medical care are not simple yes/no answers. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done”. Whilst the case of Montgomery related to advice and consent, it also highlighted the importance of a collaborative approach in patient care, ensuring a patient is aware not only of the risks of treatment, but of reasonable alternatives of variant treatments.
In respect of a clinician’s common law duty, they may need to consider, in deciding whether to refuse treatment to a patient, if they have discussed their reasoning in detail with the patient, offered suitable treatment alternatives and/or details of alternative clinicians who would be able to provide treatment.
Perhaps unhelpfully for clinicians, the decision on whether or not to provide or continue to provide treatment to a patient is not clear cut.
Clinicians must consider both their professional duties as well as legal duties which may exist by reason of a contract or a relationship of reliance, trust and confidence. Clinicians will have to use their judgement in applying the principles of patient-centred care to a variety of clinical situations they will face, taking into account all the relevant information, guidelines and protocols in place at the relevant time, and ensuring discussions and decisions are clearly documented.
For further information please contact Alice Rendell.
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