Ethics committees, COVID-19 and the law
The presence of psychiatrists and geriatricians on ethical committees will be important. CECs would be advised to include a lawyer in discussions, to…
Many hospitals now have clinical ethics committees (CECs), and more committees and sub-committees are being established to advise on issues specifically related to the COVID-19 pandemic. The shape, membership and structure of these committees varies widely. However, a national body, the Clinical Ethics Network (UKCEN), does valuable work in advising on the role and work of CECs and in sharing ideas and best practice.
Not all CECs have a legal member, and the UKCEN has reservations about the role of lawyers. Whilst it recommends engaging the Trust Solicitor “in issues of medico-legal interest” it cautions that “discussions involving lawyers tend to focus on legal and procedural issues and tend to stifle open discussions about ethics”.
This reluctance to have a lawyer as a regular member of CECs is perhaps surprising, and does not seem entirely consistent with the variety of issues which, according to the UKCEN, CECs are likely to discuss, including:
- Withholding and withdrawing treatment
- Do Not Resuscitate Orders
- Advance Directives
- Refusal of treatment
The problem with not including a lawyer as a member of a CEC is that, while a proposed solution may be ethical according to one or other school of thought, it may not be lawful. The role of the lawyer is therefore not to inhibit discussion with legalistic objections, but to define the legal parameters, the outer limits, within which a variety of ethical solutions can be discussed and agreed. Without reference to the legal parameters, any discussion may be academically interesting but may be of limited practical value.
It may be said that if what is ethical may still be unlawful, then the law really is an ass. However, there are of course different and sometimes conflicting schools of ethical thought. To take a simple example, which is particularly relevant in the context of the current crisis: utilitarianism, with its emphasis on the greatest good for the greatest number, may well come into potential conflict with individual human and legal rights. Thus the courts may adopt a broadly utilitarian approach when considering cases involving the allocation of scarce NHS resources at a macro level, but they naturally tend to adopt a different, less utilitarian approach when called upon to protect the rights of a specific individual, or to consider individual claims. Equally, ethics committees, even when tempted to consider a utilitarian approach, must continue to respect and protect individual legal rights.
As has also been emphasised in the current pandemic context in relation to DoLS:
“………. as ever, it is essential not to “dress-up” resource-based decisions in relation to deprivation of liberty – even in a time when resources may be stretched to the limit – as best interest decisions.” 
It could in fact be said that no clinical decision which is, in reality, resource-based should be dressed-up as a decision taken in the interests of an individual patient. Whilst to do so may offer welcome comfort to both relatives and clinicians, would it satisfy the duty of candour?
The UKCEN has recently published a collation of responses on the “ethical dilemma” of “Whether to Sedate Wandering Older Patients During COVID-19”. A few days later, extremely experienced barristers at 39 Essex Chambers published a Guidance Note on “COVID-19, Social Distancing and Mental Capacity”. Whilst the former concentrates on in-patients, and the latter on patients in the community, a comparison of these two papers illustrates the striking difference between the ways in which ethics committees and lawyers approach not dissimilar problems.
These two papers also illustrate why it is essential to keep in mind legal parameters when considering ethical issues. Thus, in this context, it must be remembered in particular that “the MCA 2005 and the current DoLS structures remain in place during the pandemic”; and whilst “Practical measures must be taken to ensure physical health and to prevent the spread of the infection, [these] must be taken within the structures of the MCA 2005”. The danger during the current pandemic is that the pressing utilitarian need to maximise the benefit to patients and society as a whole may cause ethics committees to overlook or at least downplay individual human rights which do in fact remain protected by law.
In the current circumstances, the presence of psychiatrists and geriatricians on ethical committees will be particularly important. In addition, CECs would be well advised to include a lawyer in discussions wherever possible, to ensure that pragmatic utilitarianism does not encroach unlawfully on individual human rights.
If the content of this update raises any issues for you, or if you wish to discuss this further, please liaise with John Mitchell, Consultant on 020 7822 1919 or at email@example.com or Richard Jolly, Partner on 0151 242 7954 or at firstname.lastname@example.org.
 UKCEN. A brief introduction to CECs and clinical ethics support. UKCEN website.
 Ruck Keene, A., and Scott R. E. (March 2020). The COVID-19 Pandemic, The Coronavirus Bill and The Mental Capacity Act. In Legal Updates, 39 Essex Chambers.
 El-Shirbiny, R. (March 2020). Ethical Reflection: Whether to Sedate Wandering Older Patients During COVID-19? UKCEN website.
 Ruck Keene, A., et al. (March 2020). COVID-19, Social Distancing and Mental Capacity. Rapid Response Guidance Note, 39 Essex Chambers.
 See Note 3