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Rationing ventilators could result in unlawful deaths, say legal experts

Current ICU protocols and ethical guidelines lack detail and leave doctors exposed to legal liability if another contagion surge forces them to make painful snap decisions due to insufficient resources, say legal experts from the Faculty of Law at Cambridge University.

If shortages lead to denial of treatment based on disability, chronic illness or age, or treatment withdrawal during sedation, it could violate patient rights and cause unlawful death, argue the lawyers in an article in the Journal of Medical Ethics.

They say 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.

“We’re definitely not out of the woods,” said Dr Kathy Liddell, Director of the Cambridge Centre for Law, Medicine and Life Sciences. “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,” she said.

The experts said any decision to withhold or remove ventilation must involve consultation with the patient or their family. Moreover, they said, withdrawing a ventilator without bringing the patient out of sedation risks unlawful killing.

“Even though returning to consciousness would be deeply distressing, all patients must be given a chance to breathe independently if they have a meaningful chance of surviving until another ventilator is available,” said Dr Liddell.


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