The issues about people not receiving treatment because of diversion of pre-existing NHS resources to the fight against the Covid-19 pandemic have come increasingly to the fore in recent days. There are obvious legal issues which arise about the rights of citizens to receive – and continue to receive – treatment from their health service. What are those rights, and what right do Governments in the UK or the health Trusts have to reduce services and not treat existing patients because of the current global health crisis?

Having been approached by a number of consultants and other clinical and managerial staff (including ‘whistleblowers’ who did not feel able to sign the letter) I along with colleagues Peter Walsh of AvMA, Mary Smith of Novum Law, and other legal, patient safety charity and medical colleagues wrote to the Prime Minister and the First Ministers of each of the devolved nations in the following terms:

We the undersigned acknowledge the consistent efforts made by ministers in recent weeks to encourage people with non-COVID related illness to take up their rights to be treated by their national health service in the four parts of the UK, or under their private insurance arrangements, without any suggestion that those rights are reduced by the need to allocate resources to the fight against the pandemic itself.

However, we are increasingly concerned about the impact, including avoidable harm and death, which is being caused by the continuing unavailability of urgent diagnostics and treatment for thousands of non-COVID patients. The backlog of such cases is now significant and worsening. We implore the central and devolved Governments of the UK to take urgent strategic action, including in co-ordination and co-operation with each other, to prevent this becoming a second and perhaps even more serious health catastrophe arising from the pandemic in the UK.

We fully understand the initial confusion and need for drastic measures to protect patients and staff from the virus at the start of the crisis, such as closing down many NHS services entirely. However, where it arose that need was temporary and, with lack of any obvious planning for de-escalation, there was a clear failure to respond appropriately by reallocating resources to the treatment of non-COVID patients.

Due in part to your measures and the unwavering dedication of NHS staff, the health service has got through the first wave of the pandemic. The diagnosis and treatment of non-COVID patients with potentially life-threatening conditions must now be rapidly accelerated. Many NHS hospitals are running at something like 60% capacity and most of the diagnostic resources and thousands of beds commissioned from private providers and in Nightingale Hospitals (and their equivalents) remain unused. In each case, this means serious wastage of resources in space, facilities and clinical care, which are so badly needed by non-COVID patients already identified as needing treatment, many urgently.

The lack of diagnosis and treatment of non-COVID patients is putting many thousands of lives at risk, without them having any say in which risks they would rather take as between their established condition and exposure to the coronavirus. It is also denying dedicated health professionals the opportunity of doing what they came into their profession to do.

Urgent care can be provided safely with good planning, adequate protective equipment for staff, and appropriate safeguards in place, to protect the wellbeing of both patients and staff, many of whom are already exhausted from dealing with the pandemic. Some isolated parts of the NHS are already showing how this can be done, but it is nowhere near enough. The strategic planning we are urging must take account of both the need to continue to deal with future waves of the pandemic and the needs of the patients to whom this letter refers.

We believe there is a legal duty, but more importantly, a moral duty, upon Government to ensure all patients have access to the urgent diagnostics and medical treatment they need.

We are pleased that this subject is now coming more and more into the public eye. It has been covered by ITN News in their major evening news bulletins (Dan Rivers), by the Sunday Express (Lucy Johnston) and the Guardian (Denis Campbell), by BBC West (Matthew Hill), and most recently by BBC’s Panorama and on last week’s Andrew Marr show, with Mr Marr asking both the Secretary of State and the NHS Chief Executive to explain why people with life-threatening conditions, with urgent need for diagnostic procedures and treatment, have been left to wait for periods they just cannot afford because of the supposed need to allocate all resources to the fight against Covid-19.

As we all now surely know, most of the extra clinical resource created to deal with large numbers of Covid-19 patients has not in fact been used, including the Nightingale hospitals, and requisitioned space in private hospitals. The complaint, made to us by those with direct inside knowledge in the health service, was that there came a point when the fear of the NHS being ‘overwhelmed’ subsided as it became apparent that the NHS was coping well. We can argue about when that time was, but it is clear that it was many weeks ago now, and yet here we are with resources not having been successfully applied to fill the massive hole that was created in the services for seriously ill non-Covid patients.

Up to now, the concentration has been on cancer patients, but our information is that this is a much broader problem, affecting seriously ill patients in neurology, cardiology, some aspects of surgery, and other fields. The potential range of ‘excess’ deaths attributed by Panorama to the problem in oncology is 7-35,000. That is oncology only, which is why we contemplated in our letter that this could be a ‘perhaps even more serious health catastrophe arising from the pandemic in the UK’.

Robin Swann, Northern Ireland’s Minister of Health , was the first to reply to our letter, on 23 June. He said:

As you can appreciate, the COVID-19 pandemic has posed unprecedented challenges for the planning and delivery of health and social care (HSC) services in Northern Ireland.

Some HSC services had to be curtailed due to the need to re-direct resources to deal with the pandemic. While I believe that this was a necessary and correct decision, l also recognise the impact this has had on many patients across Northern Ireland. In this context, I have launched a new ‘Strategic Framework for Rebuilding HSC Services, the key aim of which is to incrementally increase HSC service capacity as quickly as possible across all programmes of care, within the prevailing COVID-19 conditions.

In tandem with the development of the Strategic Framework, I have asked service providers to develop incremental service plans. To that end, Northern Ireland Health and Social Care Trusts published individual service plans on 9 June 2020, covering the month of June. This will then inform subsequent incremental service plans to be developed in three month cycles, starting from July. In addition, a new Management Board has been established to oversee the development of regional plans for priority services such as cancer, screening and urgent and emergency care, building on innovation introduced in response to the pandemic.

I should emphasise, however, that it is not possible to return to business as usual. COVID- 19 will be with us for some time and will continue to impact on how, and the extent to which, we deliver services. Patient and staff safety will continue to remain at the heart of service delivery as we rebuild HSC capacity in Northern Ireland.

Early use of the word ‘unprecedented’ was unsurprising, and has been the common refrain of ministers being asked to explain why things have not gone as well as we might naively have thought that they might have for the UK nations, when compared with the experience of other countries. It appears that now, in June, a ‘Framework for Rebuilding’ has been established to restore services which were well established prior to the pandemic taking hold in Northern Ireland. The total number of deaths certified as Covid-related in Northern Ireland was 826 as at 26 June 2020. That is 4.4 per 10,000 of population (PDF). The normal death rate from all causes is 83 per 10,000.

On June 29, Vaughan Gethin, the Minister for Health and Social Services in Wales, wrote his reply to our letter. The Minister said this:

I understand the impact COVID has had on delivering services and on all the patients who are waiting for appointments and treatment. However, ensuring the safety of staff and patients throughout the pandemic has been the key priority.

Throughout the pandemic, health boards have continued to carry out some urgent activity where it was safe and in the best interest of patients, making use of all available capacity, including the independent sector. They are now planning how they will be able to reintroduce more of the essential services and guidance has been developed and issued. To do this, health boards are looking at how they can develop safe green zones within the hospitals to keep COVID and non-COVID patients separate. This work is being clinically led, which is the correct approach as it adds the level of risk assessment.

When it is safe for patients to return to hospital, discussions will take place between the patient and their clinician to explain the options available to them and the precautions that have been put in place to ensure they are able to be treated safely, as it is important that we recognise the need to balance the risk of receiving treatment and the risk of COVID-19.

It is, perhaps, a little surprising only now attention is being given to how to separate Covid and non-Covid patients in clinical settings, particularly given how clear it is that those with co-morbidities are especially vulnerable to Covid-19. The Minister repeatedly refers to ‘safety’ of patients, particularly (twice) in the last paragraphs, and with the implication that there is seemingly something rather paternalistic in this approach in a way which will jar with clinical negligence practitioners who in recent years have been absorbing the rejection of that type of approach by the Supreme Court in Montgomery [2015] SC 11; 1 AC 1430 , where the court stressed the modern view of patient autonomy, that it was not normally for doctors to make decisions about what was in their best interests, but rather for doctors to advise their patients and give them full information upon which the patients may make informed decisions, including by giving informed consent to proposed treatment.

It was this that we were adverting when we referred in our letter to ‘without them having any say in which risks they would rather take as between their established condition and exposure to the coronavirus’. The total number of deaths laboratory confirmed as Covid-related in Wales was 1507 as at 29 June 2020. That is 4.8 per 10,000 of population. The normal annual death rate from all causes is 106 per 10,000.

We await a response from England and Scotland. We are of the view that the NHS statutes create rights in the citizen to be treated when they present with illness, and subject to any restrictions on the forms of treatment available with the benefit of public funds (eg. excluding certain forms of cosmetic treatment, or unlicensed medications). The Constitution of NHS England (PDF) sets out expressly the rights enjoyed by patients, but they are, we suggest, uncontroversial and well understood – perhaps merely assumed – by the public, and there is no reason to think that the treatment rights of the citizen under the devolved NHS statutes are any lesser:

The NHS belongs to the people.

…This Constitution establishes the principles and values of the NHS in England. It sets out rights to which patients, public and staff are entitled, and pledges which the NHS is committed to achieve, together with responsibilities, which the public, patients and staff owe to one another to ensure that the NHS operates fairly and effectively.

…Access to health services:

You have the right

… to receive NHS services free of charge, apart from certain limited exceptions sanctioned by Parliament.

… to access NHS services. You will not be refused access on unreasonable grounds.

… to receive care and treatment that is appropriate to you, meets your needs and reflects your preferences.

… to expect your NHS to assess the health requirements of your community and to commission and put in place the services to meet those needs as considered necessary, and in the case of public health services commissioned by local authorities, to take steps to improve the health of the local community.

… to access certain services commissioned by NHS bodies within maximum waiting times, or for the NHS to take all reasonable steps to offer you a range of suitable alternative providers if this is not possible.

As we noted in opening our letter, there has been no suggestion that these rights have been reduced. Whilst a temporary reallocation of resources in March may have constituted ‘not unreasonable’ grounds for refusing certain types of treatment, it is obvious that that required to be kept under careful review and resources reallocated again quickly when the reality of the Covid threat was clearer and the risks of that could be better balanced with the risks of not diagnosing and not treating those with serious illness, and especially those who had already presented for treatment. Notwithstanding the opening words of our letter, these latter are the patients who we consider have been poorly served in recent weeks and who, or whose dependents, are likely to have strong claims to remedy under our public and private law principles.