A legal epidemiological study of patients' rights and healthcare rationing in England during the COVID-19 pandemic

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Demand for NHS treatment outstrips supply. Long-term funding constraints and periods of acute scarcity of resources including staff, beds, and equipment, raise questions about patients' rights to treatment and the impact on clinicians of rationing NHS resources. These concerns intensified in the initial stages of the COVID-19 pandemic, when it was considered that resource prioritisation guidance for hospitals and clinicians had significant limitations.i For example, it has been argued that policies regarding withdrawal of life supporting treatment for resource prioritisation purposes may be unlawful and that a policy based on the ethical principle of utilitarianism (saving the most 'life-years') may amount to discrimination in respect of the elderly and patients with comorbidities. iii Where no policies exist, rationing falls to individual clinicians, with inherent risks of inconsistency and bias for patients, together with a risk of moral injury to the clinicians. While rationing to manage a surge in demand can be justified, this requires an adequate legal framework to protect patients and clinicians.iv Newdick, Sheehan and Dunn argue that patients have procedural rights in respect of resource allocation decisions, which can be elucidated through analysis of earlier legal decisions related to the provision of NHS treatment. They propose that this should be used as the basis for an overarching national framework to guide local resource allocation decision-making to protect patient rights. v My proposed research applies this theoretical framework and uses mixed methods, including a novel application of legal epidemiology, to clarify patients' legal rights to NHS treatment and to ascertain the extent to which policies/guidance on rationing during the COVID-19 pandemic protected or 3 derogated from those rights. The on-going pressure on NHS resources indicates that resource prioritisation remains an important issue post-pandemic and it is anticipated that the findings of this research will assist policy-makers and clinicians in making legally informed resource allocation decisions in future.