Varad S Kolhe

| @ | May 25,2020

How are scarce resources of hospitals to be allocated during a public health emergency? Who takes the decision to admit or not to admit to the hospital in a scarcity situation? The author here discusses this issue in the context of the decision of the High Court Justice of Queen’s Bench Division in London whereby it made way for the admission of Covid-19 patients.

 

THE High Court of Justice of the Queen’s Bench Division in London recently ordered an in-patient to vacate her room in the NHS Hospital ward and switch to community care instead, to make way for Covid-19 patients and avert the risk of contracting the virus herself. NHS Trust v. MB perpetuates a paradigm peek-through into not just one, but several disruptive consequences of the pandemic on homo sapiens’ life.

MB, a victim of childhood physical abuse, in-turn suffered from several neurological disorders and psychological conditions (PTSD, OCD, BPD). Requiring help with personal care (washing, toileting and dressing), she was admitted to NHS on 18/02/19 after a sudden collapse at home. Amidst the pandemic, MB refused to vacate her bedroom at NHS, threatening suicide if her demands were not met.

MB’s objections

 

The terms and conditions of MB’s care package were the focal point of the dispute. MB’s lack of trust in NHS and the local authority meant that discussions over her community care package kept oscillating back and forth. Camden’s proposal provided for 24 x 7 care, subject to review after one month. However, MB insisted for (i) 24 x 7 care, pending review only after twelve months; (ii) independent therapists; and (iii) tailored adaptations to be made to permanent care home, failing which, she would only be able to live in a ‘vegetative state’.

 

Legal Strands

 

The court examined whether MB’s discharge violated her rights under Arts. 3, 8 and 14 of ECHR and led to discrimination under s. 29 read with s. 149 of the Equality Act, 2010. (“Act”)

 

Analysis of the Court’s Conclusions and Reasonings  

 

The court’s decision explores and explicates in the finest details every legal issue that the facts and circumstances pose. It does everything in its power to ensure principles of fair hearing are followed in spirit and substance by: postponing hearings to accommodate MB’s alterations in mood; granting additional time for adequate legal representation to MB; and also allowing her to put forth her thoughts over telephone hearings even if MB’s behaviour meant that she vociferously ruled out any interruptions by the judge’s questions.

 

Expert Evidence on behalf of MB

 

Medical evidence in the case was brought to the fore by NHS. MB insisted that she be permitted to adduce her own independent medical evidence. However, the court declined any need for further evidence. Relying on Law Society v Lord Chancellor, [2019] 1 WLR 1649, the court upheld traditional deference accorded to the medical profession for self-regulation by holding that clinicians cannot be expected to provide treatment or care contrary to their own clinical judgment. Generally, medical professionals largely self-regulate what manner of health care to offer patients. They do so primarily through setting standards of care, issuing position statements, and (in conjunction with the state) controlling licensing and policing of the professional practice. Finally, with no prospect of obtaining such evidence within a reasonable timeframe owing the pandemic, it eliminated the requirement of additional expert evidence as waiting would only defeat the very purpose and urgency of the application.

 

Claim for Possession v. Injunctive Relief, locus standi of NHS

 

MB opposed NHS’ move to courts for recovering possession of the hospital bedroom on the ground of a general stay on possession claims effected by CPR 51Z PD during the pandemic. However, the court opined that after NHS’ termination of MB’s license to occupy the hospital bedroom, MB invariably assumed the position of a trespasser. Hence, a general stay on possession did not in any way impact a claim for interim injunction for a property owner to enforce its rights against a trespasser. (see Manchester Corporation v Connolly [1970] Ch 420 and Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780). As a result, objections to locus standi of NHS in the claim were rendered vacuous.

 

Care Package improved

 

With Camden’s agreement to upgrade 24 x 7 care for a duration of three months pending review; the service of qualified therapists promised; and all the adaptations (except fitting of rain canopy) complete; the court observed that three prongs of distress; self-harm; and suicide were appositely managed by the care package, particularly when MB’s risk factor (measuring proneness to suicide) was moderate to low.

 

Public Law Defences to Private Law Claims

 

MB’s argument that her discharge was irrational in the Wednesbury sense was ruled out after considering the NHS’s team’s continuing patience, forbearance and utmost sensitivity to manage symptoms and make reasonable adjustments, even when the team itself suffered mental agony in the process.

 

Cruel Inhuman and Degrading Treatment (Art. 3 ECHR)

 

The Court rejected the argument that the dispossession from the hospital bed amounted  to torture .The legal definition of torture has five elements: (i) the nature of the act; (ii) severe pain and suffering; (iii) the perpetrator’s intention; (iv) the purpose of the torture or CIDT; and (v) the involvement of public officials. To ascertain whether discharge amounted to degrading and inhuman treatment within Art. 3, the court reasoned that (a) the discharge is to be viewed not from MB’s lens but, from an objective clinical lens; and (b) in allocating scarce health care resources, discharge essentially fulfilled the state’s positive and limited obligation to prevent suffering from reaching the threshold under Art. 3. Acknowledging that in-patient care was in-fact a scare resource (R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977), the court held:

a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even ceasing to provide in-patient care to one of them to leave will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life. A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer inpatient care to B.”

The court held that especially in times of the most serious public health emergency the decision to shift MB to community care to was  (a) derail any risks of MB herself contracting coronavirus and (b) affording healthcare avenues to the rising coronavirus positive patients who, unlike MB, cannot be treated in community care. It held that the decision was reasonable.

 

Reasonable Restrictions on MB’s Private and Family Life (Art. 8 ECHR)

 

Quoting R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, the court substantiated the wide margin of appreciation available to the states to reach harmony between competing individual and community interests, particularly in an assessment of the priorities in the context of the allocation of limited state resources. Thus, although shifting MB to community care invaded on her right to private life and home, such restriction on her right was necessary in the larger picture of relentless patients queueing up to receive treatment for the coronavirus.

 

Discrimination under Art. 14 ECHR

 

Article 14 of the Convention enshrines the protection against discrimination in the enjoyment of the rights set forth in the Convention. According to the Court’s case-law, the principle of non-discrimination is of a “fundamental” nature and underlies the Convention together with the rule of law, and the values of tolerance and social peace (S.A.S. v. France[GC], 2014, § 149; Străin and Others v. Romania, 2005, § 59). In that vein, the court ruled out discrimination under Art. 14 holding that:

The decision to decline in-patient care to MB does not discriminate against her on the ground of her disabilities. The Hospital has treated her in the same way as a patient with different disabilities or with none: it has determined whether to continue to offer her in-patient care on the basis of her clinical need for such care. To the extent that this is itself discrimination against those, like MB, whose disabilities make them perceive a need for things (such as a rainwater canopy outside the front door) for which there is in fact no objective need, the discrimination would be justified even outside the context of a public health emergency. In the context of such an emergency, there is no prospect that a challenge based on Article 14 in these circumstances could possibly succeed.

NHS’ Obligations towards MB in the Equality Act, 2010

  1. 149 of the Act subjects the public sector to a general equality duty. The duty entails to achieve three aims: (a) eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act; advance equality of opportunity between people who share a protected characteristic and those who do not; foster good relations between people who share a protected characteristic and those who do not. Further, the Act requires: (i) removing or minimising disadvantages suffered by people due to their protected characteristics; (ii) taking steps to meet the needs of people from protected groups where these are different from the needs of other people; and (iii) encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

On the other hand, s. 29 precludes discrimination at the hands of a service provider. The court held that the careful, reasoned, adaptive and timely assessment of MB’s mental and physiological ailments coupled with every reasonable adjustment afforded to her as an in-patient at NHS  made MB’s arguments under the Act, untenable.

 

A Bellwether for the Future: Striking a Fine Balance

 

The court fixed 12 noon as the time for MB to leave the ward the very next day, failing which, she would be subject to court’s coercive contempt powers.  This meticulous judgment exhibits utmost sensitivity and empathy in court’s approach to the human ingredients of the case. Principles of UNCRPD promote the social model of disability, calling for ‘participatory justice’, over and above substantive, procedural and symbolic justice. Chamberlain J.’s decision certainly sets the trend right and serves as a precedent for such cases in the future,  balancing the right to healthcare resources; disability rights; and NHS’ public law obligations in an emergency pandemic scenario, all while keeping notions of ableism at bay.

 


[The author is a final year undergraduate student at ILS Law College, Pune. He may be reached at [email protected]]

Note: This is an opinion piece, and the views expressed are the author’s own.

 

Read Also: https://theleaflet.in/allocation-of-scarce-medical-resources-amidst-corona-pandemic/

 

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