Covid-19: Doctors challenge legality of government’s PPE guidance
BMJ 2020; 369 doi: https://doi.org/10.1136/bmj.m1665 (Published 24 April 2020) Cite this as: BMJ 2020;369:m1665Find out more about our #properPPE campaign
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Dear Editor,
This legal challenge will be uncomfortable for many managers who for the first few weeks of the crisis could only recite the mantra that while there was adequate national supply of PPE - ‘local distribution issues were being reported’ (1). When this became untenable, it was suggested that the problem might lie with inappropriate use of PPE by staff (2). The narrative from the top then changed to ‘we are to be congratulated for having done our utmost, but there is an international demand for PPE which is therefore difficult to obtain’ (3). The most recent survey of over 2000 doctors by the Royal College of Physicians indicates that even now matters are deteriorating (4). As its President remarked: “Healthcare workers risking their lives couldn't care less how many billion pieces of PPE have been ordered or supplied. If it isn't there when they need it, they are in harm's way”.
In fact, the current guidance for PPE does need clarification and this may hopefully come about through the courts. Were the Centers for Disease Control and Prevetion right in saying the FFP mask should be the one of default rather than the fluid resistant surgical mask? (5). Is it OK to re-use equipment originally intended for single use? (6). Why is generating an aerosol by doing something to make a patient cough regarded as high risk whereas a patient generating an aerosol by coughing is not? Is it right to state categorically that Covid-19 is not airborne? (7) (in which case why worry about aerosols?). Those who wish to jump to the government's defence might consider the fact that risk from pandemics has been rated high in the UK for at least the past 15 years (8), most recently in the 2019 National Security Risk Assessment (9), yet recommendations to stockpile PPE have been ignored (10).
Staff should not need to fight for adequate work protection through legal challenges, but to many I suspect this will feel like the right move and one born out of desperation. The 28th April is International Worker’s Memorial day, this year focused on deaths from Covid-19. The 1960’s Detroit car workers song provides a suitable anthem: “I don’t mind working, but I do mind dying” (11).
References.
1) https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/...
2) https://www.theguardian.com/society/2020/apr/10/matt-hancock-urges-publi...
3) https://www.bbc.co.uk/news/av/uk-politics-52431221/coronavirus-nhs-staff...
4) https://www.rcplondon.ac.uk/news/tracking-impact-covid-19-workforce
5) Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. https://www.cdc.gov/coronavirus/2019-ncov/infection-control/control-reco...
6) https://www.rcsed.ac.uk/news-public-affairs/news/2020/april/rcsed-presid...
7) https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/...
8) https://www.newstatesman.com/politics/uk/2020/03/why-weren-t-we-ready
9) https://www.theguardian.com/world/2020/apr/24/preparing-for-pandemic-nat...
10) https://www.bbc.co.uk/news/newsbeat-52440641
11) https://www.youtube.com/watch?v=K2kdeLsYn0M&feature=youtu.be
Competing interests: No competing interests
Dear Editor
There is no shortage of criticism about the government’s handling of the covid-19 pandemic. More than a month ago, Richard Horton, the editor of The Lancet did not mince words when he said [1], "something has gone badly wrong in the way the UK has handled Covid-19. I know Chris Whitty, the chief medical officer, and Patrick Vallance. I have the utmost respect for both. They have had the services of some of the most talented researchers in the world to draw on. But somehow there was a collective failure among politicians and perhaps even government experts to recognise the signals that Chinese and Italian scientists were sending. We had the opportunity and the time to learn from the experience of other countries. For reasons that are not entirely clear, the UK missed those signals. We missed those opportunities".
Hence, it is not surprising at all that two doctors felt apt to launch a legal challenge against the government’s guidance in relation to PPE in hospitals [2]. The emergency legislation (‘Coronavirus Act 2020’) has not denied access to justice to anyone, thus it is entirely justifiable to seek a remedy for their grievances whilst the matter remains a live issue. Their summary grounds challenging the lawfulness of PPE guidance [3] appears reasonably arguable but the merits or demerits of the legal arguments will finally be a matter for the court to decide. The two doctors leading this legal action should be commended for their courage and personal risks they have to take in the wider interest of NHS staff including those who are from BAME backgrounds; irrespective of the outcome of this case, among other things, it should be seen as a fitting tribute to frontline staff who sacrificed their lives to save others.
Further, if the government fails to reveal the 2016 study ‘Exercise Cygnus’ [4], then there could be another legal challenge and arguably, raising further questions as to transparency of scientific processes.
References
[1] https://www.theguardian.com/commentisfree/2020/mar/18/coronavirus-uk-exp...
[2] https://www.bmj.com/content/369/bmj.m1665
[3] https://www.bindmans.com/news/legal-challenge-against-the-uk-governments...
[4] https://www.theguardian.com/uk-news/2020/apr/26/doctor-sue-results-opera...?
Competing interests: No competing interests
Dear Editor,
In these unusual and extremely difficult to pre-emptively plan for times, it is unlikely that we will have optimal equipment or facilities. International and National standards change as more knowledge is acquired. Retrospectively it is always easier to identify “mistakes”. As already pointed out in the article and reiterated by Dominic Raab, “NHS and care workers have had the very best PPE that the government can get them, amid a global supply shortage” [1]. This does not abscond politicians from trying their very best to continue to procure better resources, but this is reality.
Data from most of the early affected Covid countries currently suggest that PPE is associated/ correlated with infection risk in health care workers. Data from China suggest higher early nosocomial infection risks were reduced/resolved by more enhanced PPE provision for health care workers. [2,3]
Whether UK national PPE guidance is sufficient or not to mitigate against most nosocomial spread is uncertain but a recent paper in the Lancet by some of my senior NHS trust colleagues came to the conclusion that the PPE guidance currently provided seems to be adequate for our Trust’s staff, in the current circumstances. “This would support the theory the greatest transmission to staff is from the community rather than from Covid positive patients in the wards and also reinforces that general precautions need to be taken irrespective of any individuals clinical or non-clinical role….suggesting that nosocomial transmission from patients to staff was not an important factor. This is consistent with observations in China, where staff testing was widespread.” This is a very reassuring (if correct/replicated), important and pertinent finding; in regards to this court case. [4]
For balance, the paper has potential problems, the most glaring of which is the misunderstanding of the early Chinese data and reference quoted (For no significant nosocomial infection risk to be correct at least one in 27 people (44672/1716) in Hubei need to be working in their Health Service). [3]
It is nonetheless disappointing that time and money is being diverted by this legal case. I can see little benefit in undertaking this case currently.
Yours Sincerely,
References:
1: https://www.bbc.co.uk/news/av/uk-politics-52431221/coronavirus-nhs-staff... (26/04/2020)
2: Int J Biol Sci. 2020; 16(10): 1739–1740. (03.2020): https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7098026/
3: JAMA. 2020;323(13):1239-1242 (02.2020)
https://jamanetwork.com/journals/jama/fullarticle/2762130
4: The Lancet: DOI: https://doi.org/10.1016/S0140-6736(20)30970-3 (04.2020)
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30970-3/fulltext
Competing interests: Potential Conflict of Interest: Senior BME Lead Consultant on a Covid ward. Deputy Chair NUTH Clinical Ethics Advisory Group
Re: Covid-19: Doctors challenge legality of government’s PPE guidance
Dear Editor
PPE is being presented as a black and white issue. It is certainly rightly a touchstone for health care workers about how they are regarded and cared for by government.
But no PPE is 100% effective even if used perfectly in a controlled environment. A busy hospital, GP practice or care home setting will reduce the stated effectiveness considerably. PPE that is 99% effective in practice may sound excellent and feel "safe" for single or few contacts. However, it will inevitably fail over multiple contacts with patients who would have transmitted disease to the health care worker had they had not been wearing any PPE.
After only about 70 such contacts 50% of staff wearing 99% effective PPE will be infected (the chance of NOT being infected is 0.99 to the power of 70, which is 0.49). After 230 such contacts 90% of staff will be infected. What is not known is the proportion of patient contacts which would have resulted in transmission to a health care worker not wearing PPE, but its probably high and the numbers should give pause for thought.
The main purpose of PPE for NHS staff in this pandemic seems to be to flatten their infection curve so they are there to treat the curve of patients flattened by social distancing in the community. In other words to keep a match between supply and demand. It is not to reduce the number of NHS staff ultimately becoming infected from their patients, because it can't unless the pandemic is stopped early through vaccination.
There is also the complication of community transmission for NHS staff because the desired outcome is preventing infection from any source, not just through work. This also assumes the PPE actually works and articles in this journal seem to question whether there is evidence that PPE (surgical mask or N95 respirators) does for other respiratory viruses.
Dr James Andrew Rixom
Retired Consultant in Public Health Medicine.
Competing interests: No competing interests