Thread by @katiegollop

Intensive care is a scarce resource demand for which has almost exceeded supply.

But the Gov + NHS have no national guidance on resource allocation/prioritisation.

Should they?

NO, says Swift J, who, this pm refused an oral application for permission to bring a JR.
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3 grounds of challenge argued by Covid affected families:

i) the Civil Contingencies Act 2004 s2(1) + 2A impose a mandatory statutory obligation to have such an ethical decision making tool (NHSE says "rationing policy") under the duty to "maintain plans"
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so a body can continue its functions in an emergency;

ii) Art 8 - locally made rationing decisions made w/out national guidance are a systemic breach of Art 8 and not in accordance with the law;

iii) Rationality - it is irrational not to have a national guideline.
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Swift J says:

i) lots of problems with the CCA argument - it runs counter to s1, no operative functions in s2(1) that inform duty to have a national guideline, no s2A obligation on SS to have a policy guiding clinical judgement on how to allocate resources from case to case
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ii) Art 8- having local policies doesn't involve a systematic violation of patients' rights in breach of Art 8; local decisions will be made according to proper procedures; lack of national policy not arbitrary; no positive obligation on SS to produce national guideline
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iii) there are pros and cons to a national guideline:

pros - such a guideline would promote public understanding and trust at a time of national anxiety, and ensure fairness and equality which are core NHS values
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cons - rationing is controversial, difficult, may mean inappropriate decisions in individual cases and risks distress to those feeling excluded/disadvantages.

Given pros and cons, Judge says not even arguable to characterise the lack of a national guideline as irrational.
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There will be a mix of reactions by those interested in #medicalethics and intensivists.
For some,a nationally applied guidance doc, if rationing decisions must be made, is the only way patients can know decisions will be made in the same way whichever hospital they go to to
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and essential to relieve moral distress for those making these grim decisions esp when isolated and tired in the middle of the night.

For others, no guideline other than a v broad and flexible one is possible because every case is different and situations so dynamic.
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We must all hope all patients are only ever treated in their best interests!

Fascinating to watch other advocates, not to mention a super smart judge, at work.

QC - Do you know the case?
Judge - No. (scans report for a nanosecond) Isn't this your difficulty?

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