The NHS, Triage and the Virus. Pt 2.

As concerns grow that some people may have been denied access to intensive care during the pandemic, the Covid bereaved are demanding they be allowed to present evidence to the UK's public inquiry.

In my previous post, I looked at the crisis in NHS ambulance waiting times, the UK’s postcard lottery in health, and described how in the run up to lockdown in March 2020 the Department of Health and Social Care (DHSC) and NHS England had contemplated issuing national guidance on population triage in order to prevent Intensive Care Units (ICUs) being overwhelmed.

In the event, the draft document was never issued, leaving doctors and other health professionals to navigate the surge on the NHS without official guidance from the government and the legal protection such guidance would afford.

Instead, in May 2020, the Intensive Care Society (ICS) issued a “Covid-19 decision support aid” to help clinicians decide which patients would be most likely to benefit - and which wouldn’t - from more intrusive interventions, such as mechanical ventilation.

However, according to the ICS, its decision aid was desgined for “individualised” rather than population-wide decision-making and implementation was “the responsibility of individual trusts”, not NHS England.

Today, I describe the concerns of the Covid bereaved that this decision aid, or similar guidelines, may have been used to deny their loved ones access to intensive care at the height of the first and second waves of the pandemic. I also describe how lawyers representing bereaved families are pressing Lady Heather Hallett, the chair of the UK Covid-19 Inquiry, to allow them to submit evidence to her, arguing that under the Human Rights Act, the bereaved have the right to “effective participation” in the inquiry.

Earlier this year Lady Hallett held preliminary hearings with members of the bereaved alarmed about the use of triage guidelines and the inappropriate use of Do Not Attempt Resuscitation Orders (DNAR) during the pandemic.

A DNAR form (or DNACPR form, which stands for do not attempt cardiopulmonary resuscitation) is a document issued by a doctor to inform a medical team not to attempt cardiopulmonary resuscitation and is designed to communicate a patient’s wishes to healthcare professionals. Any decision regarding DNARs must be made on an individual basis with the involvement of the patient and/or their families where they have legal guardianship. The blanket imposition of DNARs is unlawful.

However, in 2020 Amnesty documented several cases where GPs had apparently requested DNAR forms be inserted into residents’ files using a “blanket approach”. In its report, “As if Expendable”, Amnesty also reported how some Clinical Care Commissioning Groups (CCGs) had pressured GPs to ensure that care home residents who were unlikely to respond to intensive care treatment would not be conveyed to hospital.

There is growing evidence that these practices were not confined to the care sector but were also applied to patients arriving at hospitals directly from the community. Indeed, bereaved families have told me how DNAR orders were imposed on family members without their knowledge or consent. These include cases where children expressly forbade doctors to place DNAR orders on their parents’ medical notes and made it clear that they expected them to be escalated to intensive care should their condition require it. There is also evidence of DNARs being used to deny life-saving treatment to the disabled and individuals with learning difficulties.

However, despite hopes that this evidence would be allowed into the inquiry when preliminary hearings begin on October 4, Lady Hallett has now informed lawyers representing the bereaved that, instead, they will be given the opportunity to present to a parallel “Listening Project” and is proposing to delegate the work to an outside research company. Indeed, this week she invited 12 pre-approved firms to bid for the contract, including several that had previously worked for the government during the pandemic, prompting accusations of a conflict of interest. As a spokesperson for CBFFJ told the Guardian, the inquiry risked being “another example of those in power being able to mark their own homework”.

More worryingly, because the Listening Project will be separate from the formal inquiry process, there will be no legal requirement for Lady Hallett to consider the bereaved’s testimony as evidence and demand the disclosure of documents relating to triage and the imposition of DNAR orders.

This is important because the DHSC has blocked Freedom of Information requests seeking discosure of national triage guidelines and actions that followed pandemic planning exercises prior to Covid-19. Moreover, although the focus of Module 2 of the inquiry starting this autumn is on political and administrative decision-making, under the inquiry’s terms of reference Lady Hallett also has a duty to investigate the management of the pandemic in hospitals, “including infection prevention and control, triage and …. the use of ‘Do not attempt cardiopulmonary resuscitation’”. Indeed, lawyers for the bereaved point out that under the 2005 Inquiries Act Lady Hallett has “considerable discretion as to what material she receives and considers, and how it is adduced”.

Despite NHS England’s assertion it never issued national triage guidance, some experts believe population triage could have occurred without there necessarily being an explicit instruction or official policy in place.

“The question of triage is a highly controversial one,” tweeted Bath-based anaesthetist and intensivist Dr Tim Cook in August. “When demand exceeds capacity not all can have the care they need… This can be explicit or hidden. I believe this took place”.

Indeed, Cook points out that population triage takes many forms and begins when patients who should be given oxygen or ventilation at an early stage in their illnesses are discouraged from consulting GPs or presenting at A&Es. This is a process that began during the first lockdown when NHS England defaulted to what is known as a “passive clinical approach” and advised people concerned about their health to stay at home and dial 111 or consult an automated online symptom checker (alarmingly, one of the pieces of advice was “how to manage breathlessness at home”, something that would have been inconceivable prior to the pandemic).

The upshot was that many patients who should have presented at hospitals did not out of concern that they might become a burden to the NHS at a time of crisis.

This only changed when their symptoms became so severe that they had no choice but to report to A&Es. The result was that hospitals were soon deluged by patients with severe breathing difficulties, putting intense pressure on ICUs and forcing clinicians to make difficult decisions as to which patients should be ventilated and who would be unlikely to benefit from more intrusive procedures. This was particularly the case during the first phase of the pandemic in spring 2020 when clinical care resources and ICU expertise were unevenly distributed, meaning that a patient presenting, say, at Northwick Park in Harrow, Middlesex, might receive poorer treatment than someone presenting at University College Hospital, in central London.

In response, many hospitals rapidly expanded their ICU capacity by cancelling elective treatments, repurposing critical care beds and transferring staff to intensive care duties. Similarly, during the second more severe Alpha wave, patients in need of intensive care were transferred to hospitals with spare ICU capacity. The result was that in neither wave were hospitals overwhelmed. Nevertheless, between October 2020 and April 2022, England and Wales recorded 85,000 deaths from Covid-19, approximately a third more than during the first wave.

This matters because, as we have seen this summer and as I detailed in my previous post, the NHS crisis has not gone away. Indeed, if anything, as Alpha and subsequently Omicron, have waned the crisis has worsened, with a record 6.8 million people currently languishing on hospital waiting lists.  

Since April, the Office for National Statistics has recorded an average of 500 non-Covid excess deaths a week in England and Wales. Whether or not this excess is explained by people succumbing to conditions that they were unable to get treatment for during lockdowns or other factors, such as the summer heatwave, bed blocking and chronic NHS staff shortages, is to some extent moot (for an excellent analysis of the collapse of emergency healthcare this summer see this recent thread by the Financial Times’s data analyst, John-Burns Murdoch).

As with the shortfall in ICU capacity at the height of the pandemic, the NHS’s inability to cope with the present levels of demand is traceable to many of the same causes: principally, Andrew Lansley’s disastrous reforms of social care in 2012, coupled with 13 years of austerity and the under-recruitment of NHS staff by successive Coalition and Conservative governments. The result is a lottery where, depending on where you live and your ability to work the system, you may – or may not – be able to access the health care you require.

Sometimes, as in Alison Durkin’s case, which I detailed yesterday, this rationing may be inadvertent, a consequence of over-worked emergency staff failing to spot the tell-tale symptoms of ischemia. In other cases, it may be the result of doctors having to make difficult decisions about the allocation of scarce resources during a pandemic and in the absence of official guidelines from NHS England or hospital managers.

Whichever is the case – and whatever your view of the challenges facing the NHS as it grapples with an ageing population and surging demand for its resources – this is something that is in no one’s interests, least of all doctors and patients.