Bindmans LLP has today sent a letter to the Secretary of State for Health and Social Care and NHS England, pursuant to the pre-action protocol for judicial review, challenging their failure to publish a national policy framework setting out how decisions regarding the allocation of limited resources (intensive care places and life-sustaining treatment) should be taken.
It is becoming increasingly likely with each passing day that the COVID-19 pandemic will peak in the UK without there being sufficient resources to treat each and every patient. There is however no national policy in place setting out how the limited resources available should be allocated. In real terms, what that means is that individual Trusts and doctors up and down the country are having to make those life and death decisions for themselves without any sort of national policy in place to guide or inform their decision making. In addition, it means that individuals have no idea whether or not, were they to be diagnosed with COVID-19, they would be treated, or whether a decision would be made to allocate the resources needed elsewhere.
Acting on behalf of a man who fears that, because of his underlying physical health conditions, he would not be prioritised, and who would, if that were the case, rather die peacefully at home surrounded by his loved ones than alone in hospital, it is said that the absence of such a policy is a breach of the rule of law, irrational, and a breach of his human rights.
The Secretary of State for Health and Social Care and NHS England have been asked to respond by 4pm on Thursday 16 April 2020.