Scottish Government Covid-19 inquiry: Legal protection and reassurance for doctors must be addressed ahead of future pandemic

Should we face another pandemic in the future, healthcare professionals must be reassured from the outset that they are protected not just from clinical negligence claims, but from unfair employer, regulatory and criminal investigations following decisions made in good faith during extreme circumstances.

In its response to the Scottish Government’s inquiry into the handling of the Covid-19 pandemic, Medical Protection - which supports over 6,600 healthcare professionals in Scotland - said providing swift clarity on indemnity arrangements for clinical negligence claims resulting from decisions made during the pandemic had supported healthcare professionals to work flexibly and care for their patients, and is a positive learning from this pandemic.

However, the organisation said that for future pandemics healthcare workers must also have reassurance - from the start - that their employer, the courts and the regulator would consider the extraordinary circumstances should their decisions be questioned in the future.

Dr Rob Hendry, Medical Director at Medical Protection, said: “Healthcare workers have been treating patients with a new virus, making extremely difficult triaging decisions, with stretched resources. Many have been working outside of their normal area of expertise and sometimes without adequate PPE. Others made the selfless decision to join the workforce early or to return from retirement to support the NHS.

“The Scottish Government, working with the UK Government and other devolved administrations, quickly identified at the start of the pandemic the need to ensure clear indemnity arrangements were in place regarding clinical negligence claims. This is a positive learning and the way it was addressed should be recognised ahead of future pandemics.

“But healthcare workers told us they were still concerned about the prospect of an investigation by their employer, regulator or – in the most extreme of cases – by the criminal system.

“Since the start of the pandemic, we have called on the Government to introduce emergency legislation to protect healthcare workers who could find themselves at risk of inappropriate legal challenge when treating Covid-19 patients in good faith and in circumstances beyond their control – particularly following difficult decisions on how limited resources are allocated.  Such legal protections would be temporary, applicable only over the duration of the pandemic, and of course not apply to wilful or intentional criminal harm or reckless misconduct. We urge the inquiry to ensure steps are taken to facilitate quick introduction of this emergency legislation in a future pandemic situation.

“The GMC must also look to reassure healthcare professionals swiftly should we face another pandemic.  Its guidance for staff on how to take the Covid-19 context into account when considering complaints provided some reassurance and could be quickly repurposed and published.  Concerns remain however, that it is only guidance. It could be some time - years even - before such investigations are handled and at this point memories of these unique and challenging circumstances may have faded.

“The legitimate fear of the medical profession that the NHS, regulatory and legal apparatus are ill-prepared to deal with adverse incidents that have occurred during this crisis, is a fear that must be addressed ahead of any future pandemic. The formation of an independent expert committee to review this complex area and set out recommendations on how healthcare workers would be quickly reassured and protected in a future pandemic, is something we believe the inquiry should consider, and we stand ready to assist.”

ENDS

For further information or a copy of the submission to the inquiry, please contact: E: [email protected]  T: +44 (0)7515 298791

About Medical Protection Society

The Medical Protection Society Limited (“MPS”) is the world’s leading protection organisation for doctors, dentists and healthcare professionals. We protect and support the professional interests of almost 300,000 members around the world. Membership provides access to expert advice and support and can also provide, depending on the type of membership required, the right to request indemnity for any complaints or claims arising from professional practice.

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

Our philosophy is to support safe practice in medicine and dentistry by helping to avert problems in the first place. We do this by promoting risk management through our workshops, E-learning, clinical risk assessments, publications, conferences, lectures and presentations.

MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association.