Duties of Directors: I am writing in my personal capacity. I have been considering the duties that would apply to those who may have a role in treating COVID patients or boards and non-executive directors that may be part of the governance structure.
It is these duties that led me to set out some thoughts and concerns so that there can be a reasoned discussion of emerging risks. If we assume that the risks I set out have some foundation in fact, there will be significant impact or potential impact for organisations involved in any aspect of patient care.
Although a lot has been written on the topic of directors’ duties, I think many of these duties are summed up in what I refer to as the “duty to think”. What does this mean? It means the ability to think outside of the framework of the organisation, to look for gaps, inconsistencies or other areas where one may see things differently. This includes the ability to entertain thoughts outside of the dominant or approved views. Going with the "flow" or the majority view has led organisations to miss key concerns due to group-think.
I recently met with someone involved in the Grenfell Towers project and was able to discuss with them the issues around that tragedy. While there were some interesting insights, I found myself wondering if those involved in approving the cladding could have thought differently? How could this issue have been caught? What if someone had said that something didn’t look right and required more discussion and input or even more robust fire safety tests? Could this tragedy have been avoided? I am sure in due course “lessons will be learned” from this, but the spectre of what we could be missing should be on everyone’s mind.
The duty to think also includes the need to avoid group-think and the processes that flow from that. We have seen this exposed in a number of high profile inquiries. These inquiries help to focus us on the need to always consider what the next lacuna could be. What could we be missing now?
I believe the duty to think also includes the duty or willingness to speak out or articulate a position that may be contrary to common or agreed thinking at a certain point in time. There is no point, after a problem has emerged, to hear that a few people had concerns but were intimidated or afraid to raise them. We must ensure that questions, concerns and views can be raised and will be heard. Some recent enquiries and reviews support this approach:
Lack of Board Interest and Curiosity - In, “A Review of Leadership & Governance in Muckamore Abbey Hospital, 31 July 2020” (“Muckamore Review”), among many compelling issues, the Muckamore Review noted in paragraph 5 that “…there was a lack of interest and curiosity at Trust Board level.” https://www.health-ni.gov.uk/sites/default/files/publications/health/doh-mah-review.pdf
Passive and Reactive Board - The Independent Review into the Circumstances of Board Member Resignations in the RQIA 8 December 2020 also criticised the board, stating that: “…the Board was passive and almost reactive in how it was operating”. https://www.health-ni.gov.uk/sites/default/files/publications/health/doh-rqia-report.pdf
No Effective Board Reaction and Institutional Deficiencies - In the Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry, Robert Francis QC noted as follows: “This Inquiry is charged to investigate the deficiencies in the system which allowed the events of Mid Staffordshire to pass unnoticed or without effective reaction for so long…There was a combination of factors, of deficiencies throughout the complexity that is the NHS, which produced the vacuum in which the running of the Trust was allowed to deteriorate.” Later in para. 1.1 of Summary of Findings, Francis noted: “…there has been a constant refrain from those charged with managing, leading, overseeing or regulating the Trust’s provision of services that no cause for concern was drawn to their attention, or that no one spoke up about concerns.” (emphasis added) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/279124/0947.pdf
The Duty to Inquire - In the Report of the Inquiry into Hyponatraemia related Deaths at 7.15 Professor Scally advised that there was no requirement during the period under review for Boards or Trusts to notify the Department about “potentially avoidable deaths or other instances of serious clinical failure.” I was particularly drawn to comments found at 7.24 which reflect statements I have also made: “As Mr Gowdy observed “you don’t know what you don’t know, so you need to have a system to find out.” 74 The Department did not know, did not have a system and did not find out.” Blindness, wilful blindness or lack of processes to look at issues does not excuse boards and organisations. http://www.ihrdni.org/inquiry-report.htm
You cannot really think if you cannot freely speak as it is in communicating, discussing, weighing and evaluating thoughts that we can develop our understanding.
Current Issues Surrounding COVID 19 -There are a number of issues that could be discussed in relation to the pandemic, including among many, issues relating to:
The duty of care or duty to treat.
The vaccination programme, informed consent and the vaccines.
The use of mandates and vaccine passports.
We will focus on number one above in this blog post and the others in separate blog posts.
Issue 1 - The Duty to Treat - There is a duty to treat that is embedded in our health system, medical ethics and our legal frameworks. I will not set this out in great detail, as this starting point should be accepted by all. There is a duty to do no harm.
Against this bedrock principle, I do recognise that a vaccination programme or casualty triage process tests or puts pressure on these duties, as emergency situations mean we are to some extent putting the needs of the many in tension with the needs of the few. For example, a vaccination programme may be in place knowing that some healthy individuals will be injured or die as a result of the process. We weigh the relative merits of a course of preventative treatment against the risks. Unlike a situation such as general anaesthesia where the risks are explained to an ill patient, a vaccine is being given to an individual who is not ill, is not having a life saving procedure but may be injured or die by our actions. Clearly, in this case the ethical requirement is that there is openness and transparency with full and fair disclosure of the risks and benefits.
At the beginning of the pandemic, the approach to treatment included:
Treatment - trying to find treatments that may provide some protection.
Vaccine Development - seeking an emergency vaccine for those who were vulnerable even if it was on an emergency use basis.
Prevention Measures - lockdowns, social distancing and other societal measures to slow the spread.
As this was a “novel coronavirus” there really was no clear understanding of how to treat Covid-19 early in the process.
The issue appears to be that two tracks have developed from the early stages of the pandemic. Simplistically, one track has kept to the initial approach: trying to find effective or partially effective treatments, seeking to approve early vaccinations for the most vulnerable (those willing to take the risks of “vaccine” programmes that have not been fully tested), along with sensible lockdown and social distancing precautions which I will not discuss further at this time.
The other track seems to have focussed on limiting any treatment until hospitalisation and resisting treatment paradigms, perhaps driven by concerns that having viable treatments would increase vaccine hesitancy. Or, perhaps there was a concern that the emergency use imperative for the vaccine would be diluted if there were effective treatments? A great deal could be written about the extent to which politicians have gone to suppress treatments, however, we will focus on the fact that early treatments are not being put in place in the UK.
There may have been some arguments justifying this approach early in the pandemic as the treatment models did not have robust studies and reviews. There was perhaps more anecdotal evidence early in the process as doctors were describing their success in treatment using existing medicines. However, much time has passed and there are a number of credible studies supporting many treatments that were questioned early on.
The difference between these two approaches highlights a potential risk for the health care profession. If we assume, for the purposes of our discussion, that those advocating their positions have some credibility and validity, then we need to consider this further. By way of example, I would not want to be person, board or entity that dismissed a concern about cladding in the Grenfell Towers scenario. With Covid-19, we have far more death and injury so the concern should be that much greater.
Anecdotally, these two tracks have mirrored my experience. We suffered through Covid-19 and more importantly so did our daughter in university in Scotland. She was not treated at all just advised that if she developed serious breathing problems she should contact the ambulance service. Frankly, she was not even given the generic advice you would get with any viral infection. She was not told to increase vitamin C or D or given any other treatment. I was very troubled by this lack of treatment which seems to be the approach taken generally in the UK.
However, as early as 1 January 2021 detailed treatment paradigms have been in place. In Pathophysiological Basis and Rationale for Early Outpatient Treatment of SARS-CoV-2 (COVID-19) Infection published in the American Journal of Medicine these treatments were set out in some detail including a treatment organogram I have reproduced below. https://www.amjmed.com/article/S0002-9343(20)30673-2/fulltext
Since the publication of this article, the number of treatment models has increased and been refined, with significant studies coming into being to support many of the treatment paradigms that were suppressed earlier in the pandemic, perhaps for political purposes.
Importantly, there are now clear statements from many health care professionals that anyone not treating Covid 19 is negligent and in violation of their underlying ethical, legal and moral duties.
The view that this lack of care constitutes negligence has now been replaced by clear declarations that it also now constitutes crimes under international and national laws. These calls culminated in the Rome Declaration signed by over 12,700 eminent doctors and scientists. https://doctorsandscientistsdeclaration.org/
While all of the declaration should be read in full, I quote one of the recitals:
WHEREAS, thousands of physicians are being prevented from providing treatment to their patients, as a result of barriers put up by pharmacies, hospitals, and public health agencies, rendering the vast majority of healthcare providers helpless to protect their patients in the face of disease. Physicians are now advising their patients to simply go home (allowing the virus to replicate) and return when their disease worsens, resulting in hundreds of thousands of unnecessary patient deaths, due to failure-to-treat;
See also the Great Barrington Declaration, with over 860,000 signatures, which states:
As infectious disease epidemiologists and public health scientists we have grave concerns about the damaging physical and mental health impacts of the prevailing COVID-19 policies, and recommend an approach we call Focused Protection.
This is a very quick summary of the issue. In the UK, Covid deaths are estimated by the government to be between 139,834 and 163,515. https://coronavirus.data.gov.uk/details/deaths Potentially, given the arguments above, a significant number of these deaths may have been avoided if treatment was given earlier. Doctors in British Columbia in an open letter have noted that 75% of the deaths could have been prevented: "Conservative estimates reveal that 75% of deaths could have been prevented if treated early, even at home, with antivirals and supplements." (Open Letter to Dr. Bonnie Henry, Adrian Dix, Premier John Horgan and Attorney General David Eby- 3.0 October 6, 2021)
We must be alive to this issue or at a minimum alive to the potential that this could be an issue. How does this impact organisations, boards and directors in the UK? This is my question to every health care board, organisation and professional in the UK. I can envisage some potential impacts, including, but not limited to:
What advice are we giving to Covid victims ? What advice should we be giving, or, does the advice we currently give need to change?
What treatment and care recommendations are we providing to staff? Could there be elements of group-think in our approach such as were commented on in the Muckamore Review?
What input or feedback are we providing to the greater health service? If this is true, or potentially true, what would be expected of us in these circumstances? If there is an inquiry or review at a later date will there be comments similar to those I noted above about a lack of questioning and a lack of curiosity?
It will not be sufficient that we implemented the approved approach well, if it is the approved approach that required our input and challenge to change. Since Vichy France and the Nazi era it is incumbent on every organisation to consider the legality and morality of actions being taken or not taken. The German telecom utility successfully implemented their required actions in excluding Jews from service and sending any deposits for murdered Jews back to the state - history does not look well on their efficiency.
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