Challenge to the Government's failure to produce a national triage policy

A judicial review challenge has been brought in respect of the Secretary of State for Health and Social Care's ("SSHSC") and NHS England's alleged collective failure to give clinicians guidance as to how to prioritise access to limited critical care resources. The decisions in question do not concern solely the clinical benefit to an individual patient, but rather require a comparison of the needs of one patient with those of others.

The Claimants argue that patients and their families have the right to understand why, when and how prioritisation decisions will be taken, and that requires nationally developed criteria clearly communicated to members of the public. If there were such a policy, patients, like the Claimants, could make informed decisions about whether to choose to be treated palliatively in the community, or take the risk of seeking admission to a hospital where they may not be prioritised for access to critical care in any event. To leave these decisions to the local or individual level is not just extremely unfair and manifestly unjust to the medical profession, who are working under extreme pressure due to understandably limited resources and at risk of severe moral distress, but also to patients and their families who do not understand why or how these decisions are being made.

Without such a policy, the Claimants' case is that there is a real risk that decisions regarding access to critical care resources will be systematically taken on an inconsistent and arbitrary basis (and sometimes pre-emptively, based on a perceived rather than actual need for such decisions to take place – a risk identified by the ethics working group at a large London hospital). Indeed, the Nuffield Council on Bioethics has called for national guidance.

The challenge has been brought on three grounds. First, the SSHSC and NHS England have breached their obligations under the Civil Contingencies Act 2004 in respect of the duty to assess and plan for risks, in light of the fact that there was a material risk that the demand for critical care resources would outstrip supply. Second, they are under an obligation to produce such a policy to ensure that any interference with the Article 8(1) rights of patients (including the Claimants) in respect of how they spend the closing moments of their lives is in accordance with the law, relying on the authority of R (Tracey) v Cambridge University Hospitals NHS Trust [2015] QB 543. Third, their failure to do so is irrational.

Swift J refused permission to proceed to judicial review on 24 February 2021 and the Claimants are considering their next steps.

News coverage of the case can be found here

Vikram Sachdeva QC, Benjamin Tankel and Stephanie David act for the Claimants. Alex Ruck Keene acts for the Faculty of Intensive Care Medicine, the Fourth Interested Party.