Chris Kenny, chief executive of The Medical and Dental Defence Union of Scotland (MDDUS) is calling on the UK’s Law Officers to direct courts to take the unique circumstances created by the Covid-19 crisis into account during any related criminal claim raised against the country’s health professionals.
The union is concerned in particular about the risk of a spike in prosecutions that can be brought under existing health and safety legislation.
The move comes as a BMA survey of more than 16,000 frontline NHS doctors, believed to biggest of its kind since the coronavirus crisis began, revealed that almost half of doctors say they have sourced their own PPE for personal or departmental use, or they have relied upon donations.
The letter sent to the Lord Advocate James Wolffe QC last week makes mention of a ‘probable hostile environment’ around the prospect of increased litigation which stokes members fears of being charged with criminal offences arising from their practice and the professional and financial consequences which might flow from that.
Kenny says this may range from ‘health and safety measures to manslaughter’ and highlights issues around the provision of personal protective equipment (PPE).
The letter goes on to state: “Such allegations could arise in relation to failure to properly protect their employed staff frominfection, either by virtue of being unable to access personal protective equipment (PPE) of the proper nature or quality, or, our most particular concern, properly following extant advice from the authorities which was then superseded in the light of evolving evidence, both about appropriate measures to protect staff and the susceptibility of different staff groups to the virus.
“For the avoidance of doubt, I am referring to circumstances where it is clear that medical practitioners and care staff have been obliged to provide care during the current Covid 19 crisis but in circumstances of acute emergency or urgency without all (or possibly even any) of the appropriate PPE.
“Any such allegation would be deeply distressing at any time, but, in the present situation, is likely not just to prove wholly destructive to the individual concerned, but, were reporting of the matter to go viral while the pandemic was still ongoing, to have a major impact on clinical morale and even participation rates, altogether.”
MDDUS has urged the Law Officers in England and Wales, Scotland, and Northern Ireland to recognise that the pandemic raises a very specific issue of potential prosecutions to be brought against doctors and dentists as both employers and employees, under the Health and Safety at Work legislation.
Kenny said: “Right now our members are in many cases risking their own lives to fight the Covid19 pandemic.
“Yet we know many also have a real fear of being charged with criminal offences arising from their practice.
“The risks facing our members range from health and safety measures to manslaughter.
“There are many extremely distressing and potentially career damaging professional and financial consequences which will flow from that.”
It has been reported that some compensation claims from healthcare staff will include psychological trauma and comes as the Royal College of Nursing called for urgent action on PPE shortages.
Kenny added: “I am referring to times where medical practitioners and care staff have been obliged to work in circumstances of acute emergency or urgency without all, or possibly even any, of the appropriate PPE being supplied to them.
“Any such allegation would have a major impact on clinical morale and perhaps even participation rates altogether.
“We are calling for the courts to make clear to doctors and dentists, and their representatives, that any report for prosecution arising from claims around provision of PPE will take into account the circumstances of the pandemic.
“In particular we’re asking that courts attach particular weight to the circumstances and of urgency in which clinical practitioners have been obliged to practice.”
Scottish Conservative shadow justice secretary Liam Kerr said “Dealing with the virus has had major ramifications on normal medical practice. Some very difficult decisions have been taken by the Scottish and UK governments and that will continue to be the case for some time. That is because this is an unprecedented situation, and tough choices are being made in order to save lives and protect the NHS.
“Doctors, nurses and care staff are going above and beyond the call of duty.
“Circumstances are changing all the time and legal perspective should reflect that.”
A spokesperson for the Crown Office and Procurator Fiscal Service said: “We will respond to the letter once the matters raised have been given due consideration.”
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