Personal Protective Equipment & Regulatory Proceedings
Many questions about Personal Protective Equipment (PPE) availability, quality & guidance have been asked of late, as front-line NHS workers put themselves at grave risk on Covid wards. The current Public Health England guidance on the use of PPE, which applies to healthcare and social care workers, reduces the requirement to wear PPE and allows for the cleaning and re-use of some PPE between procedures. This guidance is contrary to current World Health Organisation guidance, and is currently subject to a legal challenge in the High Court. Other issues have arisen, for example, the HSE guidance advises the use of tight-fitting respirators, properly fitted to the individual wearer’s face, to protect against infection, but there have been reports of delays of several weeks in getting respirators adjusted to ensure a full seal. Understandably, these matters have caused concern amongst front-line staff.
Unless and until the guidance changes, many healthcare and social care workers continue to feel that they put themselves at risk every time they go to work. They have a terrible decision to make: do they put themselves and their families at risk by treating patients without adequate PPE, or do they refuse to work and risk patients suffering and dying? The clinical situation may develop with rapidity, so constant assessments and quick decisions may need to be made. The prospect of facing disciplinary action adds another layer of uncertainty and stress at a time when front-line staff need to be concentrating on saving lives.
There are two issues arising: can medical staff refuse to work in unsafe circumstances? If they do, will they then fall subject to legal proceedings? Various members’ bodies and regulators have published guidance to assist practitioners in making the difficult decision between declining work and putting themselves at risk.
The British Medical Association (BMA) advises that members should not face a disciplinary process if confronted with serious and imminent danger in the workplace. However, both the BMA and the Royal College of Nursing (RCN) state they will fully support members who face legal proceedings as a result of refusing work, suggesting that at least some proceedings are anticipated. The RCN goes even further, warning nurses could face criminal prosecution for corporate manslaughter in “very rare” cases for walking away.
The RCN has advised members that they are entitled to decline to work as a “last resort” if they have not been given adequate PPE, whilst recognising that this will be contrary to every instinct for nurses. Taking the decision to decline work may not be at odds with the professional standards of practice and behaviour for nurses, midwives and nursing associates. The Code does state that ‘to preserve safety you must take account of your own personal safety, the safety of others and the availability of other options for care’. This is not a black and white test; the Code does not specify how registrants should conduct this balancing exercise. According to the NMC’s own guidance, registrants must ‘take into consideration the balance of risks in relation to those people who are dependent on care services, as well as the requirement to protect yourself and other staff so that they are able to provide ongoing care’. This is very much a subjective judgment call open to different interpretations, and where there is room for interpretation there will be room for criticism.
The NMC has set out some guidance covering how registrants should make the decision to work or not. If registrants fail to take and/or record the steps suggested then they may lack supporting evidence and may be more liable to criticism by the regulator. In light of this, it is important that registrants record any decision-making process relating to safety concerns. This may be critical evidence to put before a future disciplinary tribunal. Registrants should make notes describing how they used their professional judgment, any liaison with managers, the role of other members of their team in decision making, and the outcome. Further factors to consider include:
- Whether treatment can be delayed or provided differently (for example, remotely);
- The availability of different levels of PPE that may offer sufficient protection in particular care activities;
- Whether some members of the wider team are at a higher risk of infection than others;
- Whether different care and treatment decisions might be appropriate to minimise the risk of transmission in accordance with local and national advice; and
- Taking account of all the options available, what course of action is likely to result in the least harm in the circumstances, taking into account the safety of both registrants and patients.
The NMC states that any decisions should take account of local and/or national clinical guidance, advice and protocols, so it is important that this is reflected in the written record. Notably, the national guidance is currently being challenged in the courts: two doctors, Dr Meenal Viz and Dr Nishant Joshi, have issued Judicial Review proceedings arguing that the guidance in its current form puts healthcare and social care workers at risk, and breaches their legal protections at work and their human rights. Further regulatory guidance may be issued depending on the outcome of this legal challenge.
The NMC has also confirmed that in considering referrals where a registrant has refused to treat a patient because of their concerns about inadequate PPE, it will consider the context of the current pandemic, including the risks that the individual registrant was exposed to and how they exercised and recorded their professional judgment in line with the Code. The Chief Executives of several health and care regulators including the NMC, GDC, HCPC and GMC, have signed a joint statement confirming this position. It remains to be seen what practical impact this will have.
If a registrant is faced with the decision as to whether to work or not, or later finds themselves the subject of a complaint to their regulator, then seeking early advice from their union, members body, or legal representative is essential. Members of Charter Chambers Regulatory Team are always here to help.