The government is facing at least two judicial review cases over the supply of personal protective equipment (PPE). In the first, two doctors are seeking to challenge the lawfulness of Public Health England (PHE)'s guidance arguing that the availability of PPE is inadequate to protect them from infection and that the government is failing in its duty to protect health workers.
PHE’s response is that the guidance is consistent with advice given by the World Health Organisation (WHO) and was agreed by all the UK’s chief medical officers, in consultation with royal and medical colleges.
In the second case, solicitors acting for NHS doctors and the Good Law Project have written to the Secretary of State for Health Matt Hancock, demanding that an independent public inquiry is set up. They rely on Article 2 of the European Convention on Human Rights. Article 2 says that “everyone’s right to life shall be protected by law.”
Specifically, they say this means there is a legal requirement to investigate the deaths of NHS staff and care workers that are caused by COVID-19. The letter also says that “the Secretary of State and other public bodies (notably Public Health England and relevant NHS bodies) owe a positive duty to have adequate systems in place to protect the lives of NHS staff and other care workers”.
The letter, which asks for a reply by May 25, adds that Article 2 “requires relevant public authorities to procure and supply adequate equipment – including PPE – for hospital, NHS and other care staff in advance of any relevant incident, in so far as the need for such equipment can reasonably be anticipated.”
I’ve previously written about the Good Law Project when they unsuccessfully challenged the lawfulness of serious shortage protocols. This time, they are on the side of the angels and, even though pharmacy workers don’t get a mention, the proposed claim seeks to protect all NHS workers.
The healthcare workers, including the pharmacy workers, who have died from COVID-19, are martyrs. In my personal view it should be beyond argument that PPE ought to be available to all healthcare workers dealing with patients face-to-face.
However, if there isn’t enough PPE to go around, what is the point of litigation? The government intends to hold a public inquiry when the pandemic is over. I’m not sure what starting it now will achieve, especially when public inquiries usually take years to produce a report.
David Reissner is chair of the Pharmacy Law and Ethics Association