THE coronavirus disease 2019 (COVID-19) pandemic has required an extraordinary approach to health care provision. This unfamiliar territory will bring to the surface medico-legal risks in a context that Australian doctors have never before experienced.

Missed or delayed diagnosis

Internationally, there are examples of cancer screening and diagnoses declining significantly during the COVID-19 pandemic. Here in Australia, the Royal College of Pathologists of Australasia raised the alarm in April following a 40% decline in private and community pathology testing. The ABC recently reported a 30% reduction in Victoria in reports for the five most common cancers: colorectal, prostate, breast, melanoma and lung. Research in the MJA reported a 25% drop in presentations to emergency departments in 2020 compared with 2019.

This is likely due to patient reticence to engage with health care facilities during the pandemic, but it may also represent reduced access to services.

In parallel, the largest Australian survey of telehealth use has demonstrated unprecedented uptake in telehealth, with associated concerns that this may curtail practitioners’ ability to physically examine patients. Further, policies restricting elective procedures will have reduced the throughput of diagnostic services such as gastrointestinal endoscopies.

Taken together, these patient, doctor and system factors form the perfect “Swiss cheese” for possible delayed diagnosis. It is too early in the evolution of this pandemic to have accumulated enough complaints or civil claims to concretely confirm delayed diagnosis. However, there is high impact international literature predicting delayed or missed diagnoses during COVID-19 (here and here). Doctors should not be later held accountable for these delays.

Deviation from the pre-COVID-19 standard of care

By way of clinical example, non-invasive ventilation is a cornerstone of treatment of respiratory failure for multiple pathologies. An aerosol generating procedure, this treatment has become a theoretical risk during the pandemic due to the possibility of increased COVID-19 transmission (here and here). However, for the patient with lung disease unrelated to COVID-19, delay in administering or withholding this therapy, to comply with infection control protocols, may cause significant harm. There has been no discussion about the level of community transmission that would justify this harm.

Residential aged care facilities

Decisions about treatments and hospital transfers of aged care residents is nuanced, collaborative and emotive, even in the absence of COVID-19. With widespread COVID-19 infections within these facilities, these decisions become uniquely challenging.

Will doctors who are doing their best to advocate for the dignity and respect of these vulnerable people, be later criticised for the risk assessments they made concerning treatment and transfer?

This is an uncharted and evolving pandemic, with ever-shifting societal restrictions, viral prevalence, patient behaviour, scientific evidence base, clinical guidelines, and resource availability. Overlaying this is huge mental stress for frontline doctors, and the pressure of staff shortages.

The Australian Health Practitioner Regulation Agency (AHPRA) and the Medical Board of Australia have acknowledged that during a pandemic “there may be a need for practitioners to adjust established procedures to provide appropriate care to patients”. We support the position of AHPRA and the Medical Board of Australia that if a concern is raised about a practitioner’s decisions and actions, the specific facts will be considered, including the factors relevant to their working environment, and that they will take account of any relevant information about resources, guidelines or protocols in place at the time.

Regulators, courts and experts must be mindful of hindsight bias when considering the accepted standard of care during the pandemic, often several years after the event.

Health care workers are the most valuable resource Australia has in our response to the COVID-19 pandemic. It is unfair to hold them accountable for outcomes that are beyond their control.

Dr Jack Marjot is a Doctor in Training, and Medical Adviser at Avant Mutual.

Georgie Haysom is Head of Research, Education and Advocacy at Avant Mutual.

Dr Penny Browne is Chief Medical Officer at Avant Mutual.



The statements or opinions expressed in this article reflect the views of the authors and do not represent the official policy of the AMA, the MJA or InSight+ unless so stated.

3 thoughts on “Medico-legal risks surfacing through COVID-19

  1. Doug McKenzie says:

    In my experience with a Medical Board ( WA , 2004), my barrister advised me that the Board will try and give the complainant a satisfying outcome , despite no findings of negligence against the doctor ( me). You are guilty until proven innocent before a Medical Board he stated, which is how it went. The Bolam Principle has not been paramount for over 20 years. Mental health patients are more likely to complain to a Board ( and the press) and so it is a priority to satisfy them, even at the expense of the doctor. Comprehensive, contemporaneous notes are critical
    Caveat Medicus

  2. Andrew Baird says:

    Sounds like Bolam.

    ‘A medical practitioner does not incur a liability in negligence arising from the provision of a professional service if it is established that the medical practitioner acted in a manner that (at the time the
    service was provided*) was widely accepted in Australia by peer professional opinion as competent professional practice.’

    * (eg during the COVID-19 pandemic)

  3. Shyan Goh says:

    Unlike UK and New York State of USA, there is no clear or coherent call for medico legal protection from the effects of the disruption by the COVID-19 pandemic.
    Although there would be some expected accommodation of the extraordinary circumstances clinicians are working in, the rapid changes in service delivery including the rules and notifications meant that most of this occurs online via updated website content, sometimes aided by email notification if one is lucky to be on the sender’s lists. Hence any changes (and the evidence of such) is electronic and can only be accessible if it is saved/printed by clinicians or in the email folders, or automated website archives (which is not infallible)
    Furthermore the significant behavioural changes by healthcare consumers during the 3 months between April-June 2020 meant there are far more people who chose not to follow up with their doctors appointment, or do so via Telehealth which is a compromise, regardless of the enthusiasm of “cyberspace utopia” advocates. This meant there are far more people to chase up for missed appointment, or upon Telehealth consultation, requiring in-person consultations.
    The onus for responsibility to pursue adequate care, regardless of circumstances, is still placed on the clinicians rather than the consumers.
    Many people have short memories, and those working in large institutional facilities may have better resources in liaising with patients and accommodating add-on appointments in their schedules, compared to smaller group or solo practices.
    While clinicians should not rely on legislative measures as a clutch or a refuge for poor clinical practice, without it meant the judicial and regulatory assessment of a clinician’s standard of practice relies too much on individual judges and AHPRA. Even if the government just make an announcement acknowledging the difficult circumstances clinicians have to work with during the pandemic while trying to maintain clinical standards, without actually providing any amnesty of clinical transgressions, it sends a message to all that everyone is responsible for participating in their own health management.
    Unfortunately the optimal time to do exactly this is long gone, and the enormity of catching up with at least 3 months of lost clinical activities (longer in Victoria) will no doubt have an roll-on effect for the next few years, even with the flawed assumptions there is no further large scale social disruptions from the current pandemic.

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