Triaging Coronavirus treatment – (2) the legal basis and discrimination

Catherine Casserley

Declan O’Dempsey

As part of our series considering the human rights and equality implications of Covid-19, Catherine Casserley and Declan O’Dempsey consider BMA Guidance on the use of characteristics of age and disability in medical triage in the light of discrimination law.  This article considers the guidance and the legal basis.  The next article will consider the impact of discrimination law on the guidance.

BMA Guidance

As readers will be aware, and as examined in the previous article (Resuscitation) the BMA has issued Guidance on the use of age and disability in triaging for treatment for Covid 19.  Whilst the UK is officially past the peak, and so choices about patients’ access to treatment may, currently, be less critical, the treatment of disabled people continues to make headlines. Disability organisations are raising treatment issues with the NHS and figures such as Baroness Campbell and disability organisations are working with them to ensure a principled approach.  This is essential as there is no guarantee against a second peak, when the guidance will remain relevant. This and the next article look at the way in which that guidance operates along with the subsequent statement which was intended to clarify its ethical approach to age and disability in this context and in particular at discrimination. 

The original BMA guidance stated that decisions must, amongst other things, be aimed at minimising the damage of the pandemic.  In relation to resource allocation the guidance stated that some patients might be denied intensive treatments they would normally receive. Treatment might have to be withdrawn from some to enable treatment of others with a higher survival probability; it might be withdrawn from one who is improving but for whom objective assessment indicates a worse prognosis.

The subsequent statement emphasises that neither age nor disability are, in themselves, relevant criteria for making decisions about treatment.  The clarificatory statement made clear that the fact that a person is above a particular age or the fact that they may have an existing medical condition is not in itself a factor that should be used to determine access to intensive treatment. Similarly a person with a disability should not have that disability used as a reason to withhold treatment unless it is associated with worse outcomes and a lower chance of survival.

The statement accepted that a decision to exclude from intensive treatment everyone above a particular age or with a disability would be illegal. It goes on to say that treatment in an ICU provides no guarantee of a positive outcome.   Such treatment is invasive and highly burdensome (e.g. involving intubation and mechanical respiration support).

Reasonably certain

Before starting treatment for any patient, the statement says, doctors must be reasonably certain that the patient has the physiological capacity to benefit from the treatment. Questions can therefore be asked about what is meant by “reasonably certain” (which appears to set quite a high standard), and how the doctors reach a conclusion as to the patient’s physiological capacity to benefit from the treatment.  Will the latter concept involve consideration of how quickly the patient will benefit from the treatment? If the evaluation requires a clinician to triage on the basis of a requirement that the patient should be able to recover quickly, it raises questions of potential disability discrimination.  It would, at the least, represent a provision criterion of practice (PCP).  Thus it would give rise to questions of indirect discrimination concerning the capacity of the patient to benefit from treatment based on patients having particular co-morbidities and the ability to recover from treatment.  It would also give rise to questions of whether the duty to make reasonable adjustments was being observed:  if there is a PCP (requiring patients to be able to recover quickly) it may put certain disabled people at a substantial disadvantage compared to non disabled people; it may be reasonable to take steps to avoid the disadvantage.

When do age and/or disability become relevant?

The guidance says that where the consequences of age or a pre-existing disability  mean that the patient is significantly less likely to survive, these become relevant factors.

It is not clear how the consequences of age or disability are established.  What is meant by “significantly less likely”?  Would it be rational to include in the probabilities surrounding a person having an age, those mortality statistics which are the result of underlying conditions?  Should persons who are fit and well in an age group receive the mortality statistics of those who have some relevant underlying health problem?  For example,  the fact that the mortality statistics for those over (say) 65 include many people who have smoked for many years and whose lungs are thereby impaired mean that a 65 year old who has never smoked should have the same chance of mortality under ICU treatment as these others?  If the chance of mortality (or the chance of mortality from pneumonia like causes) is considered as a consequence of age, these statistics fix healthy members of the age group with the chances attributable to the less healthy, purely as a result of their belonging to the age group.

Survival or speed of recovery?

A crucial flaw in the statement is that it moves from using, initially a criteria related to the chances of survival, to using a criterion based on speed of recovery.  In other words, the BMA is instructing clinicians that it is acceptable to refuse life-saving treatment to a person because there is another person who will recover more quickly from the ICU treatment. The basis for such a triaging policy must be that the through put of patients is greater if only those who recover quickly are treated.

The statement introduces this by referring to situations in which there are specific co-morbidities which are known to impact on either the patient’s likelihood of survival or on their speed of recovery.  It says that these co-morbidities may be taken into account and that it is lawful and appropriate to do so.  The lawfulness of this will depend on establishing justification under the EqA (and the human rights arguments which will be the subject of a future article).

The BMA FAQs on Triage

Where I can’t treat everyone can I prioritise some patients over others?  The BMA says that it is legal and ethical to prioritise treatment among patients. Importantly, for the purposes of the discussion below, the FAQs make the point that the senior leadership at the clinician’s organisation should make decisions about resource allocation.  The decisions must be reasonable, and based on sound principles, based on best evidence/opinion available.  They should be agreed upon in advance, where practicable, and be consistent between different professionals.  They should be communicated openly and transparently. They should be subject to review and modification as the situation develops. The FAQs, in other words, seek to equate a triaging decision in an individual case to a resource allocation decision which normally would be related to categories of persons and conditions.

The FAQs also deal with how to decide which patients to treat.  The speed of anticipated benefit is said to be the critical issue. Other relevant issues include the severity of the acute illness; the presence and severity of comorbidity, and finally “frailty” and where clinically relevant, age.

The FAQs then turn to equality legislation. They ask whether the clinician risks breaching the law when making these decisions. They answer no because a test based on capacity to benefit quickly may amount to indirect discrimination, and in the circumstances it would be a proportionate means of achieving a legitimate aim. However simple cut off policies such as not offering particular interventions to those over 70, it says, would be unlikely to be lawful.

As we will see however, the NHS encourages staff to apply a different test to those aged 65 and over compared to those under 65 or who have a stable long term disability. Before looking at that, it is worth considering the assertion by the BMA that the legal principles for this type of decision are fully worked out. We suggest that this is not the case, in two important respects.

Guidance on resource allocation – strength of the legal basis?

The original guidance stated that the legal principles relating to resource allocation had been settled by the Court of Appeal and referred to  R (ota BA) v SoS for Health and Social Care [2018] EWCA 2696.   However it is plain even from the terms of that judgment that it did not definitively settle two aspects of this type of case: (a) the human rights of the persons affected by a  resource allocation decision; (b) the discrimination challenges that might be brought against such decisions.  It is important to appreciate that the case concerned only the question of whether guidelines were given within the powers of the SoS.  It examined the power of the Secretary of State to issue resource allocation directions, under the term of the primary legislation dealing with the provision of a health service in England. Accordingly, there was no question of whether the guidelines issued in that case (which related to organ transplant) were legally perverse.  A claim that the particular guidelines offended against some of the claimant’s human rights (article 8) was pursued at first instance, but there was no appeal against the first instance decision.   

It is therefore not possible to say that it is lawful under human rights law or equality law for a doctor following appropriate prioritisation policies to refuse someone potentially life saving treatment where someone else has a higher priority for the available treatment.

The case of BA also did not concern a situation where the treatment would otherwise be available to the complainant on the NHS.  That is a very different situation to the situation of someone refused ICU treatment where their age grouping has been a factor n excluding them from treatment which, otherwise, they would be fully entitled. 

At the time of the relevant decision the claimant in BA was not lawfully resident in the UK.  Consistently with health guidance, BA therefore was deemed not to be ordinarily resident. That, in turn, meant that, in accordance with the directions issued by the Secretary of State, BA was in a group that had no real prospect of receiving a transplant due to scarcity of organs.

In an earlier case it had been held that the Secretary of State need not provide nursing services if the Secretary of State does not consider they are reasonably required or necessary to meet a reasonable requirement (R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213  @ 24).

In the next article we will examine how the practical guidance given to clinicians on this legal basis may discriminate on the grounds of age and/or disability.