How long will COVID-19 patients continue to take priority over other patients who have an equal right to NHS treatment?

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08 September, 2020

Whilst it is largely accepted that the global pandemic is testing the Country's healthcare system to the limit, it is clear to see that the re-direction of hospital resources to manage COVID-19 has resulted in our cancer patients being one of the worst affected groups of patients, fast becoming the forgotten victims.

It is estimated during the pandemic that nearly two million routine operations have been cancelled and 2,700 cancers a week left undiagnosed. Many new and existing cancer patients, a large number of new referrals who may otherwise have been offered simple surgeries, with excellent long term prognosis', are instead set to experience an incredible injustice imposed upon them by this crisis.

After the announcement by the UK Government on March 23, 2020, of the implementation of a nationwide lockdown to combat the COVID-19 pandemic, hospital referrals for non-COVID-19-related illnesses decreased substantially. It was reported that GPs made 40% fewer '2 week wait' referrals to secondary care during the period from March - July 2020.

What is a 2 week wait referral?

This is a request from your General Practitioner to ask the hospital for an urgent appointment for you, because you have symptoms that might indicate that you have cancer. An urgent two-week referral means that you will be offered an appointment with a hospital specialist within 2 weeks of your General Practitioner making the referral. You have a legal right to be seen by a specialist within this time and should not have to wait more than 2 weeks to see a specialist if your GP suspects cancer. In cases where cancer has already been confirmed, you should not have to wait more than 31 days from the decision to treat, to the start of your treatment. An 18 week pathway then begins from the date the hospital receives your referral letter into a Consultant led service. This is where a consultant will take overall clinical responsibility for your treatment.

At the height of the COVID-19 lockdown, referrals via the 2-week-wait urgent pathway for suspected cancer in England, were reported to have decreased by up to 84%, leading the Government to hastily issue further guidance modifying existing cancer waiting times with immediate effect, and until further notice.

The new guidance provided by the Government now states that on receipt of a 2 week wait referral, providers need only ensure that 'as far as possible', telephone triage is available to stream patients directly to a test where appropriate. That telephone appointment will now be accepted as the 'first appointment' for the purposes of recording cancer waiting times data.

It remains the policy that providers receiving referrals may not downgrade urgent cancer referrals without the consent of the referring primary care professional. Where capacity is particularly constrained providers should ensure processes are in place to prioritise particularly urgent referrals, including greater communication between primary and secondary care to downgrade or avoid referrals where possible. Where referrals are downgraded or avoided outside the usual policies and NICE guidance, providers should seek to ensure appropriate safety-netting so that if patients deteriorate or their risk of a cancer diagnosis increases, they can be appropriately referred for further investigation.

If, as the government predicts, this Pandemic is likely to stay around for the foreseeable, how long will it be before the debate begins as to why COVID-19 infected patients should continue to take priority over all other patients who also have the equal right to NHS treatment? It begs the question as to whether our healthcare services should be making provision at this stage to at least attempt to ring fence some of their resources to allow beds and staffing for other patients.

It is clear the new government guidance is going to make it extremely difficult, post March 2020, to prove negligence in these 'undetected' cases. Unless it can be proved that a reasonable body of doctors specialising in that field agree it was unacceptable to delay referring a patient during the pandemic, and that it was unreasonable to delay treatment, then in reality any negligence claims against the Hospital Trust would probably fail.

In light of the above, should we be raising these difficult ethical questions now to protect the rights of all cancer patients in the UK, before it's too late ?

If you have any queries or concerns on any of the issues raised in this article please contact Lisa Atkinson, or ask to speak to a member of our Clinical Negligence team at Forbes Solicitors. For more information on the services we provide please contact us via email or phone us on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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