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.