Disabled People Deserve Equal Access to Critical Care – Judicial Review

Many disabled people may be left to die so that others can be saved. That’s the impact of likely coming increased demand for hospital treatment, intensive care beds and ventilators, according to multiple reports in the Press.

Guidance by the National Institute for Clinical Excellence, from the British Medical Association, letters from Clinical Commissioning Groups to care homes, letters to individual disabled people from GPs, the NHS’ “Decision Support Tool” and others, all suggest that disabled people will be left out in competition for treatment with able-bodied people. Whilst there has been some correction, I still have no confidence that disabled people will have anything like equal access to critical care services.

The BMA advice is stark:

Doctors would be obliged to implement decision-making policies which mean some patients may be denied intensive forms of treatment that they would have received outside a pandemic. Health professionals may be obliged to withdraw treatment from some patients to enable treatment of other patients with a higher survival probability. This may involve withdrawing treatment from an individual who is stable or even improving but whose objective assessment indicates a worse prognosis than another patient who requires the same resource.

The nature of many disabled people’s impairments is that compared to non-disabled people, recovery may be less likely, take longer or be “incomplete”. Under this guidance, it would appear that disabled people would not be offered intensive treatment they may receive outside a pandemic. I don’t think that disabled people’s right to life should be written off in such a manner.

The Government could and should have published guidance on how doctors will decide which people will receive life-saving treatment during the pandemic. They haven’t done so. This must be challenged.

So we’re threatening the Government with judicial review. I’m one of four claimants working with Rook Irwin Sweeney Solicitors and barristers Steve Broach and Ruth Keating of 39 Essex Chambers (all acting pro bono i.e. working for free – I’m incredibly grateful to them!)

We have written to the NHS, the Government and the British Medical Association threatening judicial review for failing to respect disabled people’s right to life. We have requested they respond on or before Thursday 16th April, or we will be forced to challenge their failures through judicial review in the High Court.

I very much hope that the Government, NHS and BMA see sense, and produce guidance on life-saving treatment prioritisation. Such guidance should safeguard disabled people’s right to life.

Read the Press Release on the Judicial Review (PDF format)

Jon Hastie, who made this video, isn’t part of this legal action, but I think he makes very clear why the action is necessary.

The campaigners are concerned that, if they contract the virus, they may be deemed less likely to benefit from life-saving treatment than non-disabled people – meaning that they may not be offered life-sustaining treatment but will instead receive palliative care 2/5

— Rook Irwin Sweeney (@ris_law) April 14, 2020

The campaigners are concerned that there is no explanation about how patients will be prioritised and that value judgements will be made about disabled people’s quality of life which will lead them to be placed at the back of the queue for treatment 4/5

— Rook Irwin Sweeney (@ris_law) April 14, 2020

The SoS and NHS England have been asked to respond by the end of Thursday 16 April 2020 to avoid the need for an application for judicial review – we’ll provide further updates here 5/5

— Rook Irwin Sweeney (@ris_law) April 14, 2020