Doctors to file legal challenge to PPE guidance

21 May 2020

Public Law and Judicial Review

Two NHS frontline doctors, Dr Meenal Viz and Dr Nishant Joshi, are preparing to file a legal challenge to the Government’s guidance on Personal Protective Equipment (PPE). This guidance, which applies to health care and social care workers, reduces the requirement to wear PPE and allows for re-use of some PPE. It goes against World Health Organisation (WHO) guidance and puts health care and social care workers at risk, breaching their legal protections at work and their human rights.

Four weeks ago, Dr Viz and Dr Joshi set out these concerns in an urgent pre-action letter to the Government. They also raised the Government’s inadequate efforts to source such PPE domestically and from the EU. The Government took over two weeks to respond and then did not answer all the concerns. They maintained the guidance aligns with WHO guidance, but asked our clients to continue to wait to receive further information before taking action. This afternoon they responded, providing minimal information which was unconvincing.

Dr Viz and Dr Joshi are no longer willing to wait, while their health care and social care colleagues, as well as their patients, around the country continue unnecessarily to contract, and in some tragic cases, die from, COVID-19 because of inadequate PPE. They do not agree that the Guidance properly aligns with that of WHO. They have therefore instructed us to prepare to file judicial review proceedings as soon as possible.
The Government have also refused to allow us to publish their initial response to the pre-action letter so that others can assess the adequacy of their approach to PPE. Our clients will push in any proceedings to ensure such documents are made public.

Estelle Dehon, who is representing Dr Viz and Dr Joshi (led by Marc Willers QC), said: “This case is about protecting front-line health and social care workers and ensuring they have the minimal protections they need to work as safely as possible. In the face of what the Government itself calls ‘acute shortages’ of PPE, there remain some baseline protections which the Government must respect. The WHO guidelines are designed to maintain those protections despite acute shortages of PPE and the Government has not explained why it has taken a different approach that causes greater risk for frontline staff.

Jamie Potter, Partner at Bindmans LLP and solicitor for Dr Viz and Dr Joshi, said: “Dr Viz and Dr Joshi cannot wait any longer, given the urgent need to protect health care workers, their families and ultimately their patients. The Government continue to seek to avoid transparency as to the risks such workers are facing with different levels of PPE and confirmation they are entitled to refuse to work where they consider the risks too great. They should be entitled to compliance with WHO guidelines for all of their work. The Government may be facing operational pressures, but it is nothing compared to the pressures and risks faced by front-line health care workers with inadequate PPE.

Dr Viz and Dr Joshi said: “We asked simple questions one month ago, hoping for open dialogue and swift resolution with Matt Hancock. In that time, over one hundred more healthcare and social workers have died. There is a human cost to this suffering – we have fielded many calls from bereaved families, many of whom have questions about PPE and systemic failings. They are going through the worst grief and trauma of their lives, and they deserve answers. Many of the deceased are BAME workers, and the government has not addressed our concerns in this regard.”

A 90-second video entitled Letter To My Unborn Child will be released tonight at 18:00 via Meenal’s Twitter account. It showcases the impact of the pandemic on healthcare workers, as well as her own personal worries about bringing up her first child during a pandemic.

You can donate to Dr Viz and Dr Joshi’s crowdfunding campaign here.