In this blog, Daniel Sokol of 12KBW talks of his experience as a barrister and medical ethicist developing an ICU triage protocol for COVID-19. Daniel writes for the British Medical Journal on medical ethics and has also written books on the subject. His website can be accessed here.
“Stay home. Protect the NHS. Save lives.” This is the refrain of the daily briefings at No.10 Downing Street. Protecting the NHS really means protecting its intensive care capacity. The government has greatly increased the number of ICU beds, by enlarging existing ICU units and creating new hospitals, as well as reallocating healthcare staff to ICU and medical wards. At the time of writing, there remains ICU capacity and Chris Hopson, the Chief Executive of NHS Providers, told the BBC on 15th April 2020 that it looked “increasingly likely” that the NHS would be able to cope. He added, however, “We cannot relax. We must remain vigilant.”[1]
It is possible, of course, that an unexpected surge may result in ICU capacity being overwhelmed. If that happens, clinicians will have to make difficult decisions about which patients are admitted to ICU and which are not. Those in the latter category will be unlikely to survive.
On 20th March 2020, the National Institute for Health and Care Excellence (NICE) produced guideline NG159, which contained a critical care referral algorithm to support decision making [2]. Within 48 hours, NICE were threatened with judicial review on the basis that their algorithm risked discriminating against disabled people. NICE amended its guidance, but it still lacked sufficient detail to assist with triage decisions.
In early April, the Royal College of Physicians [3] and the British Medical Association [4] produced ethical guidance on ICU triage. The guidance set out the issues and relevant ethical principles but again failed to provide action-guiding recommendations for ICU admission. At that time, I was receiving phone calls and e-mails from clinicians seeking help with developing their local policies on ICU triage. It was apparent that these policies would not be consistent with each other. In the absence of a satisfactory protocol, I decided to create one.
As the protocol may have to be used in a crisis, perhaps in the middle of the night, with a decision to be made in minutes, the aim was to distil everything into a 2-page document, with one page of ‘punchy’ text and one page devoted to an easy-to-read flowchart. I didn’t quite manage to keep it that short.
Developing the protocol
My 6-year-old daughter has online chess lessons. I overheard her coach say that, to capture the enemy king, she should not rely on a single attacker but on several pieces working together, such as the Queen, the bishop and the knight. I heeded the chess master’s advice. Through contacts and social media, I assembled a team of ICU doctors, medical ethicists and lawyers.
The full protocol is available here: http://medicalethicist.net/wp-content/uploads/2016/06/v5-Sokol-ICU-Triage-April-2020.pdf.
In short, it contains two criteria:
- Clinical suitability for ICU admission (i.e., how likely is the patient to survive to hospital discharge?)
- Likely duration of stay in ICU
Clinical suitability is determined by the clinical judgement of at least two ICU doctors. They will allocate patients to a ‘high’, ‘moderate’ or ‘low’ priority group.
If more than one patient falls into the high priority group, the next criterion is how long each patient is likely to stay in ICU: ‘short’, ‘medium’ or ‘long’. So, if there are two patients deemed ‘high priority’ and one has taken an overdose (sadly, ICU doctors are expecting many of those in the coming months) and is likely to stay for one day in ICU, and the other is a COVID patient who is likely to spend 1-2 weeks in ICU, priority should be given to the overdose patient. The rationale is that this will lead to more lives saved if demand for ICU exceeds supply.
This second criterion is susceptible to suggestions of indirect disability discrimination, under s19 of the Equality Act 2010. Disabled persons are more likely to need longer periods of ICU care by virtue of their disability. Section 19(2)(d) of the Act permits such discrimination if it can be shown that this is a “proportionate means of achieving a legitimate aim.” In this case, the aim is to maximise the efficient use of scarce ICU resources to save as many lives as possible in a situation where many patients are in need of ICU.
Priority treatment for healthcare workers
Another contentious matter was the prioritisation of healthcare workers. My advisers were split on the issue. The British Medical Journal is running an online poll on the question and, unsurprisingly perhaps given the readership, at the time of writing 90% (2,213 votes) were in favour of giving priority care to healthcare workers and 10% were against (239 votes). I suspect the general public would also be in favour.
A real concern, echoed by many clinicians I have spoken to, is that this prioritisation of colleagues would happen “under the radar” even if protocols were silent on the issue. This clandestine approach would be undesirable and probably unlawful.
Although the arguments are finely balanced, I have included priority treatment of healthcare workers in limited circumstances in the Protocol.
The feedback on the Protocol has been positive.
Where we are now
Other lawyers have also called for national guidance on ICU admission and, very recently, two law firms acting on behalf of disabled campaigners have sent letters before action to the Secretary of State for Health and Social Care and NHS England challenging the failure to publish a national policy framework on ICU triage [5,6].
The government doubtless has such a framework up its sleeve. When disclosed, it is likely to attract controversy and perhaps legal challenge. We hope that such a framework will never be implemented but, in chess as in life, you need to think a few moves ahead so you are not taken by surprise. Whatever the government’s strategy on ICU triage, the decision so far not to reveal this is a poor move.
[1] https://www.bbc.co.uk/news/health-52293762
[2] https://www.nice.org.uk/guidance/ng159/resources/critical-care-admission-algorithm-pdf-8708948893
[3] https://www.rcplondon.ac.uk/file/20551/download
[4] https://www.bma.org.uk/media/2226/bma-covid-19-ethics-guidance.pdf
[5] https://1f2ca7mxjow42e65q49871m1-wpengine.netdna-ssl.com/wp-content/uploads/2020/04/Press-Release-NHS-treatment-prioritisation-Rook-Irwin-Sweeney_6.pdf
[6] https://www.bindmans.com/news/challenge-made-to-failure-to-put-in-place-national-policy-framework-covid-19-pandemic
Clinical Negligence Law 
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