ICU Protocols During COVID-19

In response to the coronavirus pandemic, the Government increased the number of intensive care unit (ICU) beds in anticipation of the rise in admissions to ICU departments. This has involved enlarging units, reallocating staff and creating brand new hospitals. Thus far, these measures appear to be effective, but any sudden increase in admissions may overwhelm ICU departments.

Currently there is no national guidance in place on the allocation of resources in ICU departments to help clinicians and inform their decision-making during the coronavirus pandemic.

What guidance is there?

As stated, to date current ICU measures are working, but if admissions steadily continue, with few discharges, or there is a sudden rise in admissions for any reason, how will clinicians decide who should be allocated a bed in ICU and who should not? Bearing in mind that those who are not admitted are less likely to survive.

The National Institute for Health and Care Excellence (NICE) initially tried to offer guidance and produced a critical care decision-making tool for clinicians. However, their algorithm was found to be discriminatory against those with disabilities and despite the threat of judicial review, their amended version lacked adequate detail to guide clinicians.

With regards to issues of discrimination levelled at NICE, allegations of indirect disability discrimination could arise under the Equality Act section 19, in an ICU triage situation where a decision has been taken not to admit a disabled person. This decision may have been made in order to ‘free up’ more resources in ICU as it could be said that it is generally more likely that disabled persons would need longer stays in ICU. If it can be shown that this decision making process was a “proportionate means of achieving a legitimate aim,” then under section 19(2)(d) of the Act it is permitted. Obviously, this situation would be extremely worrying to an individual who has underlying health problems and would not be prioritised.

In the absence of NICE being able to create a satisfactory guidance for triage decision making, the British Medical Association and Royal College of Physicians decided to come together to produce ICU triage guidance in April. However, the guidance was still not satisfactory and whilst ethically minded, actually failed to get to the crux of the problem, e.g. how to guide decisions on ICU admissions.

So what is the position now?

There have been campaigns from clinicians and lawyers calling for comprehensive, national guidance on ICU admissions during this crisis and letters have been sent to the Secretary of State for Health and Social Care.

The Government must have a strategy for handling ICU triage decisions, as this surely should have been considered previously to now. Delaying its release just leads to speculation and uncertainty and should amendments be needed to any published guidance, further delay will follow.