Government faces legal action over failure to produce guidance on prioritisation of NHS treatment if demand outstrips supply

Disability campaigners have threatened the Secretary of State for Health & Social Care and NHS England with a potential judicial review challenge over the failure to publish guidance on how NHS treatment for COVID-19 will be prioritised if demand outstrips supply.

Law firm Rook Irwin Sweeney, which is acting pro bono with Steve Broach of 39 Essex Chambers, said the campaigners were concerned that, if they contract the virus, they may be deemed less likely to benefit from life-saving treatment than non-disabled people – “meaning that they may not be offered life-sustaining treatment but will instead receive palliative care”.

In a letter to the government and NHS England today, the firm has argued that the failure to produce guidance on how decisions would be made was discriminatory, amounted to a breach of their clients’ human rights and was irrational, given the proliferation of guidance from other bodies.

Rook Irwin Sweeney said: “The campaigners are concerned that there is no explanation about how patients will be prioritised and that value judgements will be made about disabled people’s quality of life which will lead them to be placed at the back of the queue for treatment.”

The Secretary of State and NHS England have been asked to respond by the end of Thursday 16 April 2020 to avoid the need for an application for judicial review.

The National Institute for Health and Care Excellence (‘NICE’) recently changed the COVID-19 guideline for clinical care after being threatened with a judicial review challenge.