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Healthcare | Legal

Adverse health outcomes during the pandemic response – legal implications

17 Dec 2020, by Amy Sarcevic

The COVID-19 pandemic has created some challenging risk management scenarios for healthcare workers – and with the heightened threat of adverse outcomes, many now feel as though they are treading murky legal water.

While Australia has missed the levels of system overwhelm seen in countries hardest hit by the virus, the very threat of it has been enough to compromise domestic healthcare delivery.

At the clinician level, worker fatigue, virtual triaging, and on-the-fly decision making may be behind a raft of adverse health outcomes – although long term data sets aren’t yet available.

At the system level, the impact of delayed elective procedures, restricted maternal care, and later-stage cancer diagnoses are also yet to be seen.

Dr. Stephen Parnis is a Consultant Emergency Physician at St Vincent’s Hospital, the Royal Victorian Eye and Ear Hospital, and Werribee Mercy Hospital in Melbourne. He sits on the board of one of Australia’s major medical indemnifiers and has faced “countless difficult questions” from clinicians in recent months.

“It’s tough because the existing regulatory framework has not pre-empted many of the ethical and legal dilemmas created by the pandemic,” said Dr. Parnis ahead of the Medico Legal Congress.

“Clinicians are concerned about a whole range of risk management issues that are not adequately addressed by the framework, or for which the legal implications are unclear because of their unfamiliarity.

“For example, am I at risk if I say I can’t provide face to face consultations? Will I be sanctioned by the medical board if I delay an elective procedure? What if there is a miscommunication because I am wearing full PPE and cannot be heard properly through my facemask? On a more sinister note, if I have to treat someone in a car park and they die, will I be legally culpable?

“My organisation has spent an enormous amount of time fielding phone calls and staging online Q&A’s for member doctors, helping them answer the myriad of questions that have been raised throughout the pandemic,” he added.

Cause for concern

Australian healthcare workers are right to be concerned. Globally, the pandemic response – including delays to screening and treatment – has had widespread health implications.

In Australia, organ donations and transplants have declined by 20 percent this year, with those on the 1700-person waiting list expected to face significant delays.

For six weeks during the pandemic peak – from March until May – Kidney transplants were suspended. Afterwards, donor supply was affected by travel and social restrictions, which saw fewer patients admitted to hospital following fatal accidents.

In place of transplants, many have been directed towards alternative, less effective, procedures, such as at-home dialysis treatments – with concerns that this may lead to preventable complications and deaths.

Delayed cancer screening is also a concern. At varying times across jurisdictions, BreastScreen Australia paused its services from late March until early April this year. When services were resumed, large numbers of women delayed their own screening in a bid to avoid COVID-19 exposure.

Even a twelve-month delay in breast screening (from forced closures and poor reuptake of screening services) could reduce five-year survival from 90.2% to 88.8%, up until 2023. In a worst case scenario for bowel cancer screening, a twelve month delay could cause approximately 6,500 additional bowel cancer deaths by 2060.

Meanwhile, experts are worried about the  reduction in emergency department (ED) presentations during the pandemic.

Between March and May this year ED presentations across all triage categories – except category 1 resuscitation – were 25 percent lower than in 2019.

At 60 percent, the proportion of patients discharged from the ED was also greater in 2020 than last year (53 percent); and there were smaller numbers of overall hospital admissions – 8047 in 2020 compared with 11838 in 2019.

While infectious enteric diseases and community-acquired pneumonia may have seen genuine reductions – as a result of social distancing – instances of stroke and chest pain are unlikely to have dropped to this scale. A reduction in admissions for these illnesses is more likely a product of suspended outpatient clinics and elective procedures, social distancing, and public anxiety, say the experts.

Clash of legal and risk management principles

Against this backdrop of compromised healthcare delivery, workers are dealing with challenging risk management situations on the ground, Dr. Parnis said.

“Staff have had to make difficult decisions, such as how to allocate scarce resources, when to suggest telehealth versus in-person consults, and whether alternative treatments are appropriate.

“In aged care facilities, these situations have been heightened. For example, if you have a frail person that is suffering from COVID-19, it is not always clear at which point you should transfer them out of an aged care facility and provide aggressive treatment. Obtaining informed consent from cognitively-impaired patients is also much more challenging, when family members cannot be present because of infection risk,” he said.

“Meanwhile, staff shortages have meant that many are working overtime. When workers are fatigued, it is harder to make accurate judgements and perform complex procedures.”

Overlaying this is the threat of long term mental health scars, Dr. Parnis said.

“Much of the pandemic response has been about preventing transmission of the virus. Sadly this has often been at the expense of mental health.

“In maternity and obstetric wards, for example, patients are experiencing challenging life events on their own. We know that people do better when they have reassurance from loved ones, yet patient visitor restrictions have been in place for much of the country.

“Healthcare workers are also less able to provide the care they want to give. The pandemic has forced us to maximise distance and minimise time with patients. We are hidden behind layers of PPE, like face masks and shields. It makes communication more challenging and can increase levels of distress. It is harder to convey information and empathy when our faces are concealed,” he added.

Dealing with unknowns

With the reduction in the quality of care, and increased threat of adverse outcomes, healthcare workers have many unanswered legal questions.

Dr. Stephen Parnis will address some of these at the Medico Legal Congress to be held 22-23 March 2021 at the Swissotel Sydney.

Learn more and register.


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