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Delays to non-COVID treatments

How trusts and practices can maintain usual services for non-COVID patients

The current pressures on the NHS are enormous and the work of NHS staff in dealing with the pandemic is quite remarkable and beyond praise. However, Dr Martin Marshall, the Chair of the Royal College of General Practitioners, makes an important point when he says that the evidence from other pandemics is that mortality from unrelated conditions rises during an outbreak.[1] No doubt morbidity due to conditions unrelated to the pandemic also increases. It is clearly important therefore that during the current crisis the NHS does all it can to minimise avoidable mortality and morbidity not caused directly by the coronavirus. This is important not just of course for the sake of the patients, but to reduce future complaints and claims.    

A leaked email reported by the BBC[2] on 9th April refers to anecdotal accounts of three cases involving children where either there were delayed responses by the NHS or parents delayed seeking assistance because of fears of coronavirus infection. Dr Marshall refers to a concern that GPs may not be seeing early presentation of cancer symptoms.  Even if patients do consult their GPs, other anecdotal evidence suggests that hospitals may not offer the usual two-week appointments or investigations for possible cancer, and that even urgent cancer surgery may be cancelled. Some GPs have reported an eerie absence of contact from their usual type of patient. Of course, many of these accounts are still anecdotal, but the anecdotal evidence is now too varied and widespread to be ignored. 

There may be a number of reasons why non-COVID patients do not receive prompt or any treatment, resulting in some cases in increased mortality and morbidity which might have been avoided. For example:

  • the patients themselves may be choosing not to consult their GPs or NHS 111, or to attend A&E. This may be for sound reasons, and a responsible understanding of the pressures on the NHS but it may be because of misinformation about the services still available, and/or a misplaced desire not to trouble the NHS at this time;
  • it may be because of short-term delays, due to a wish to protect limited resources and the rigid application of blanket triaging policies;
  • it may be because of longer-term delays, due to perceived or anticipated lack of resources, and wide-ranging policies limiting the availability of investigations or treatments.

What therefore can hospital and ambulance trusts and GP practices do to maintain as far as possible – and in many cases it will not of course be possible – usual service to non-COVID patients, or at least to reduce the number of future complaints and claims? There are at least four ways in which this might be done:    

  1. Review the information provided to patients and prospective patients to ensure that this is accurate, balanced and appropriate, and that it does not unnecessarily deter non-COVID patients with serious conditions from seeking help or accessing on-going treatment. Whilst the need to prove duty of care and causation may make it difficult for a patient to bring a claim based on general information published by a trust, this may well not be so where an existing or prospective patient contacts, or is contacted by, a trust directly. The case of Darnley v Croydon Health Service NHS Trust[1] shows that inaccurate or inappropriate information about waiting times and the availability of treatment may give rise to a claim, whether that misinformation is provided to the patient by clinical or non-clinical staff. Also, difficulties with regard to duty of care and causation might be overcome more easily in respect of even general information published by a GP practice to its own patients.
  2. Ensure that triaging policies in respect of potentially urgent contacts from patients are not so COVID-orientated that other urgent conditions are missed, or not given the priority they deserve.
  3. Ensure generally that any policy is not too rigid or inflexible, whether related to immediate triaging or to the care and treatment of new or continuing non-COVID patients. Whilst the courts have consistently upheld polices relating to the reasonable allocation of scarce NHS resources, they have also consistently frowned upon blanket policies which allow no exceptions[2]. In addition, where a policy of not currently offering treatment is based on a current or predicted shortage of available beds or resources, continue to monitor the actual and expected availability of resources, as the position in some areas does not appear to be in line with expectations. More resources remaining or becoming available than expected may allow for more exceptions to be made and more non-COVID patients to be treated.
  4. Document carefully in the notes of individual patients the reasons for any decision, and why, for example, the patient cannot be offered treatment at this time, and why there is no reason to make an exception and depart from a relevant policy. It may well not be enough simply to say: “operation cancelled due to coronavirus outbreak”. As David Birch has said before on these pages: “It is easier to record the reason for a decision at the time than trying to piece things together at a later stage”.[3]

[1] Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151

[2] See for example R v North West Lancashire Health Authority ex p A and others [2000] 1 WLR 977

[3] David Birch “Actions to take now for life after COVID-19”, Insights, Weightmans LLP website

[1] BBC News Website, 10 April 2020

[2] Ibid.

For advice about any of the issues raised by this article, please contact John Mitchell at john.mitchell@weightmans.com or Rachel Kneale at rachel.kneale@weightmans.com

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