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23 December 2020

Significant changes made in respect of PPE in light of litigation brought by frontline doctor couple

7 mins

In early March, Dr Nishant Joshi took a bold step. While working in Accident and Emergency, he started working on the frontline in treating patients with Covid-19. He soon became concerned by fluctuating PPE guidelines that were frequently changing, sometimes on an hourly basis, as well as government rhetoric that claimed there were no PPE shortages. Dr Joshi became the first frontline doctor to break ranks and raise the issue of PPE shortages on a national level. At a time when lax guidelines recommended that doctors should only wear masks for “high-risk” patients, Dr Joshi insisted that all hospital staff should be wearing masks for all patient contacts, and sought urgently to change national policy.

In April, his wife Dr Meenal Viz, who was six months' pregnant and expecting the couple's first child at the time, was so concerned about the unacceptable risks that pregnant healthcare workers were being exposed to, that she protested outside Downing Street during the first national lockdown, with an iconic sign that read 'Protect Healthcare Workers'. The image of a lone pregnant doctor protesting outside Downing Street garnered widespread media attention, including on front pages of The Times, The Telegraph, and international features in publications such as Vogue and The New York Times. 

The impact of coronavirus on healthcare workers soon became apparent. At one point, Amnesty International noted that the United Kingdom had one of the worst rates of healthcare worker mortality in the world

With a groundswell of support, including representations from both the BMA and BAPIO, Dr Joshi and Dr Viz pressed ahead with a judicial review with the assistance of Bindmans LLP that sought to ensure that healthcare workers were properly protected against coronavirus, particularly when those workers were undertaking procedures that generate aerosols, as well as tackling why and how healthcare workers of BAME origin were being disproportionately affected by the pandemic

It was a case that at its heart, asked searing and uncomfortable questions about how the government treats its healthcare workers, as well as addressing the spectre of structural racism within the NHS

Generous contributions came from the public around the world through the CrowdJustice website.

The Government made the following changes/concessions in respect of PPE during the course of this litigation:

  1. The revoking of a controversial 'Acute Shortages Guidance' that encouraged the reuse of PPE such as surgical face masks, even in high-risk areas. Evidence was presented to show that this policy was putting healthcare workers at risk of being infected with coronavirus, including multiple examples of expired PPE being handed out to frontline workers.
  2. Through representations from both the BMA and BAPIO, the NHS BAME Clinical Advisory Group, chaired by the Chief People Officer of NHSEI, was formed to provide a forum for discussion and advice to NHS England. 
  3. An AGP committee was constituted to assess evidence of AGP and risk associated with it, first met on 27th July.

Dr J S Bamrah, Chair of BAPIO said: 

We were alarmed by the lack of PPE and the mortality of frontline healthcare workers, almost all of them from BAME background and raised this very serious concern with the Secretary of State for Health on the 27th of March, which was one of the numerous representations we made on behalf of our members at the highest levels.

Dr Ramesh Mehta, President of BAPIO said: 

When we became aware of the bold decision by Dr Joshi and Dr Viz we lent our full support to the case and instructed Sarah Dodds of Medical Defence Shield and Barristers Nadia Mortaghi and Alex Shellum of Old Square Chambers to draw up grounds of support. My witness statement with detailed addendums were filed in the High Court along with the grounds.

Sarah Dodds, Head of Legal at MDS said: 

We are pleased that this case has helped in establishing the obligation of the government and its official bodies in protection of HSCWs in dealing with Covid-19 and future pandemics.

Dr Chaand Nagpaul, Chair of BMA council said: 

What Dr Joshi and Dr Viz have achieved is a really important win and will help establish clear obligations on government and the NHS to protect healthcare workers, including preventing the unacceptable re-use of PPE and the use of out of date PPE. The impact of this success will be felt throughout the remainder of this pandemic and in future and we are proud to have been able to offer the support of the BMA.

In a joint statement, Dr Joshi and Dr Viz said: 

Our judicial review shows that healthcare workers have a voice. Doctors, nurses and carers have been the backbone of our pandemic response – we deserve to know that we are safe when we are going into work, and our families deserve to be safe when we come back home. We have lost far too many of our colleagues, and we continue to seek accountability for this national tragedy.

Once a detailed enquiry is completed it is likely that the PPE omnishambles will be remembered as a national scandal. It has undoubtedly cost many lives – we understand that more British healthcare and social workers have been lost to coronavirus than British soldiers in Iraq and Afghanistan. It is shocking that as frontline doctors expecting our first baby during a pandemic, when we raised our concerns with the Department of Health and Social Care (DHSC), there was no attempt by the Health Secretary to engage with us. Instead, we were threatened by legal action and costs, hoping that we would go away. As doctors, this response went against everything that an open and honest culture is meant to be.

While working full-time, we presented dossiers of expert evidence on why existing PPE guidelines were putting healthcare workers at risk. A flimsy apron was never going to be sufficient protection against a mild breeze, let alone coronavirus. We offered constructive solutions to the government as far back as April. We hoped to resolve this case speedily, so that action could have been taken during the first wave. We hoped to have resolved this case before our baby was born – she is now five months old.

Regrettably, we must note that the DHSC legal department sought to discredit our right to raise a judicial review, and it is our opinion that they were notably hostile in trying to prevent both BAPIO and the BMA from joining as interested parties in our judicial review. Both the BMA and BAPIO were incredibly supportive and we are most grateful for their assistance in helping to protect healthcare workers. Surely Matt Hancock and his department should be trying to engage with both frontline doctors and our representative organisations? 

We are pleased that this landmark case has now been resolved with positive outcomes to safeguard healthcare workers in the future, but our search for justice will continue. We owe it to the families of our colleagues who were lost too soon.

Basmah Sahib from Bindmans LLP (Nishant and Meenal’s lawyers) said: 

Nishant and Meenal – with support from the BMA and BAPIO – have taken the government to task for an irresponsible and unsafe PPE policy, which has now been revoked. With the amended IPCG in hand, and new channels for experts and BAME Stakeholders to give the government much-needed feedback, we hope that doctors will feel more empowered when demanding safer PPE at work.

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