New research suggests that current ICU protocols and ethical guidelines on Covid-19 lack detail, and leave doctors exposed to legal liability if another contagion surge forces them to make painful snap decisions due to insufficient resources.
While the initial coronavirus peak is starting to pass in Europe without the ventilator shortages many feared, the spectre of a second wave or future outbreak means questions of medical rationing still hold sway, according to a new study by the University of Cambridge.
Although the researcher focus their analysis on ventilators, they say that many of their arguments apply to other potential medical shortages such as a lack of properly staffed ICU beds, dialysis machines or related supplies or equipment.
The say that if shortages lead to denial of treatment based on disability - including 'chronic illness' - or age, or treatment withdrawal during sedation, it could violate patient rights and cause unlawful death. This legal liability could extend to the UK Government if it is required to defend failures to purchase more medical supplies or publish ICU rationing guidance, despite knowledge of risks to life posed by the pandemic.
The legal rights of patients are not being given attention
Dr Kathy Liddell, Director of the Cambridge Centre for Law, Medicine and Life Sciences, said: "We're definitely not out of the woods. With lockdown easing, we might well see a second Covid-19 spike in intensive care units, and health services should be prepared legally as well as medically.
"The law requires more of hospitals, doctors and clinical commissioning groups than is currently set out in the guidelines provided by the British Medical Association, the Intensive Care Society and medical ethicists. The legal rights of patients matter, and they are not being given the attention they deserve."
Around 2.5% of Covid-19 patients require mechanical ventilation to live while they fight the virus, and a patient can need assisted breathing for up to three weeks. Early concerns that the virus would see patient demand overwhelm ventilator supply prompted researchers to investigate the legal limits of ventilator allocation.
They found "little concrete guidance" centrally in the UK, and argue that a shortage could see "postcode lotteries" of patient rights to life saving treatment - as decisions are taken at a local level by hospitals and doctors.
A ventilator cannot be denied on the grounds that a patient has a disability
Dr Liddell added: "Denying treatment because of a disability, which includes chronic illness, violates the Equalities Act 2010. Denying treatment based on age may also do so.
"In fact, the Equalities Act requires efforts be taken not to disadvantage disabled people. This may mean giving people with disabilities longer assessment periods on ventilation, or actually not de-prioritising them," she said.
The analysis points out that if an initial trial of treatment is proposed, it must not be too short. No one should be taken off a ventilator for reallocation purposes until the trial has been long enough to generate reliable evidence for predicting the patient's outcome.
Any decision to withhold or remove ventilation must involve consultation with the patient or their family. Moreover, withdrawing a ventilator without bringing the patient out of sedation risks unlawful killing.
If some of these scenarios occur during another virus spike, the researchers say doctors could be directly liable under criminal law for charges such as gross negligence manslaughter, criminal battery or willful neglect.
Even the UK Government could be held responsible as the decision taken by government in April 2020 not to provide a national policy on handling ICU shortages - despite recommendations from its Moral and Ethical Advisory group - could result in a violation of its obligations under Article 8 of the European Convention on Human Rights.