The BMA COVID-19 ethical guidance: a legal analysis

Abstract

The paper considers the recently published British Medical Association Guidance on ethical issues arising in relation to rationing of treatment during the COVID-19 Pandemic. It considers whether it is lawful to create policies for the rationing and withdrawal of treatment, and goes on to consider how such policies might apply in practice. Legal analysis is undertaken of certain aspects of the Guidance which appear to misunderstand the law in respect of withdrawing treatment.

KEYWORDS:

• COVID-19
• withdrawal of treatment
• British Medical Association
• ethical guidance

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Notes on contributor

James E. Hurford is a practising solicitor, with a background in public law, human rights and mental capacity law.

Notes

1 Although the BMA is a UK-wide body, the NHS itself is administered separately in each of the UK jurisdictions. This paper concentrates on the NHS in England, and therefore considers English law.

2 The same approach has been taken in respect of the Secretary of State’s duties to promote a comprehensive health service under s.1 National Health Service Act 2006 (see R (BA) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696).

3 This would include any religious beliefs the patient may have, contrary to the Guidance’s assertion that;

‘If there is a need to limit the availability of intensive care for patients because of the COVID-19 pandemic and a critical shortfall in ICU capacity, it would be unethical to apply those limits differently to patients … with or without particular religious views' (BMA, 2020: 3).

The MCA requires a person’s beliefs and values to be taken into account in determining ‘best interests' (s.4(6)(b)). Strongly held religious beliefs may well be a decisive factor in determining issues such as end of life care (see eg Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG [2019] EWCOP 21).

4 Save for the use of reasonable force to protect himself, others for whom he is responsible, or property, from immediate threat (see eg Beckford v The Queen [1988] 1 AC 130).

5 Although even if a doctor were convicted of an offence arising from actions taken in treating COVID-19 patients, this would not inevitably result in professional sanction. The GMC’s indication that it will be consider the context of any complaint suggests it would be willing to take a sympathetic view in appropriate cases. Even were the GMC to proceed, it would be open to the Medical Practitioners Tribunal to impose a limited sanction if it were satisfied as a result of the extreme circumstances that this was the most appropriate way of satisfying the statutory objective of protecting the public (Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, at [78]).