Doctors file legal challenge to PPE guidance

10 Jun 2020

Public Law and Judicial Review

Today two NHS frontline doctors, Dr Meenal Viz and Dr Nishant Joshi, filed a judicial review of the Government’s guidance on Personal Protective Equipment (PPE), setting out how that guidance suffers from errors of law; breaches their human rights; fails to comply with equality duties and discriminates against health and social care workers from Black, Asian and Minority Ethnic (BAME) backgrounds, given the known increased risk that COVID-19 poses to them.

Over a period of a month and late March and early April, just as news of chronic PPE shortages was breaking, the Government amended the Guidance to downgrade the level of PPE required to be given to health and social care workers.

The Government claims that these changes were in line with guidance set out by the World Health Organisation (WHO) and Centers for Disease Study (CDC), but the claim shows that is incorrect.

Instead, the UK’s Guidance consistently requires a lower level of PPE for health and social care workers in a number of situations when treating patients with COVID-19. It fails properly to warn health care and social care workers of the risks they face with different levels of PPE and to give guidance on how to reprocess PPE so it can be reused safely. All of this is contrary to WHO and CDC Guidance, without any explanation from the government as to why it had adopted lowers standards.

Six weeks ago, Dr Viz and Dr Joshi set out these concerns in an urgent pre-action letter to the Government, and have since then engaged in correspondence and discussion with the Government. They are no longer willing to wait for the matters they raised to be resolved. On 28 May 2020, Dr Viz and her colleagues observed a 237-second silence Рone second for every healthcare worker who died from COVID-19, in the line of duty, during this pandemic. The majority of those healthcare workers were from BAME groups, despite the fact that only about 21% of the NHS workforce are from BAME backgrounds.

Some of these deaths may have been avoided if the Government had followed international standards and maintained its previous Guidance for protecting healthcare workers across the country. The claim is therefore important, not just in the current crisis, but also given the risk of a ‘second spike’ or future pandemic.

Barrister Estelle Dehon, who is representing Dr Viz and Dr Joshi (led by Marc Willers QC) said:

“The courts have recognised that, although circumstances change rapidly during the pandemic, and the Government has wide discretion, it must respond to events within sensible bounds. In downgrading the protections in the Guidance, without proper explanation, and then asserting it complies with WHO and CDC Guidelines, the Government has stepped outside those bounds. It has breached the rights of health and social care workers, and completely failed to comply with the public sector equality duty. The lives of health and social care workers matter, and this judicial review will require changes to the PPE Guidance to ensure those lives are better protected.”

Dr Viz (who is pregnant) and Dr Joshi said:

“We don’t want to be doing this. We didn’t plan on doing this. We’re doctors in a pandemic. We want to focus on saving lives and stitching this country back together. Frankly, in our limited time off, we would both rather be phoning our families and getting our baby’s cot together. We haven’t seen many of our closest relatives in over three months. But we have been pushed into taking action by the Government’s refusal to address the issues we have raised.”

Estelle is instructed by Jamie Potter and Basmah Sahib of Bindmans LLP.