Nurses have warned that a shortage of personal protective equipment (PPE) during the coronavirus pandemic is putting their lives at risk. Some have even refused to treat patients, such is their anxiety about their welfare.
In response, one private hospital has threatened disciplinary action against staff refusing to treat COVID-19 patients.
The situation is difficult because there are multiple responsibilities. EU law creates a duty for employers to provide suitable PPE to all employees who may be exposed to a risk while working. But it seems employers haven’t been fulfilling this duty: doctors have taken actions to force an inquiry into the lack of PPE for frontline workers.
Yet if a nurse feels their employer has failed to provide adequate PPE, they cannot refuse to treat patients without giving this serious consideration. This is because they have a duty of care to those they treat.
Nurses are obliged to treat the sick
A nurse’s duty of care to their patients is a legal obligation. If they do not perform their professional skills to the level of a reasonably competent practitioner in the same profession, they can be deemed negligent. This can lead to a nurse being disciplined or struck off, civil claims for damages by the injured party, or even criminal charges if the negligence is serious enough.
The work of nurses is also governed by the Nursing and Midwifery Council’s professional code. This requires that nurses put the interests of people needing nursing or midwifery services first, and says that nurses must make patient care and safety their main concern. Nurses must also ensure that a patient’s dignity is preserved and that their needs are recognised, assessed and responded to.
In reality, a patient’s rights would kick in under any circumstances where action was needed to maintain their dignity, comfort or quality of life. In such situations, a nurse would need to act in a way to maintain at least the basic principles of treating their patient humanely and with dignity.
But refusing to treat is an option
The Royal College of Nursing (RCN) does, though, have guidance for nurses refusing to treat patients, and so acknowledges that this is a possibility.
But nurses first need to try and find a way around a problem – such as a lack of PPE – before refusing to treat someone. The guidelines state: “You must take part in identifying changes to the way that you work that reduce the risk to you short of refusing to provide treatment at all.” These might include delaying treatment, providing it in a different way, or switching around staff roles – perhaps getting someone with adequate PPE to help.
Refusing to work, the guidelines state, should be a “last resort” – and “you must be able to justify your decision as reasonable”.
Worryingly, the guidance then reminds nurses of the possible sanctions for refusing to treat COVID-19 patients: dismissal, being sued for negligence and even potential criminal proceedings. Nurses need to have in mind the effect of their refusal to act on the patient: could they die if not treated? If so, there is the potential for charges of gross negligence manslaughter to be brought – though these are very rare, the RCN suggests.
But the guidelines also contain additional information to help nurses decide if their decision is “reasonable”. They need to consider what the knock-on effects would be if they were infected – including the risk of them passing the infection on as well as the consequences of them being unable to work. On top of this, nurses are also accountable for their own safety under the NMC code. These points can be used to argue in favour of refusing to treat a patient.
No easy decision
A nurse considering not to treat a patient with coronavirus will be safeguarded, providing they carefully read and adhere to the guidelines on refusing to treat. Above all else, they will need to show that there was no other option and be able to justify their actions.
But leaving this decision up to the nurse at the patient’s bedside places them under a lot of pressure. It is potentially inhumane to the patient if they end up being denied care, and such a decision could leave a nurse vulnerable to professional criticism. They need to weigh this up against the consequences of getting infected and their responsibility to protect their own health.
I have every sympathy with practitioners facing this dilemma, as where the answer lies in these situations is not clear cut.
Paul Joseph does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.