Legal challenge to the UK Government’s Guidance about Personal Protective Equipment in Hospitals

23 Apr 2020

Public Law and Judicial Review

Two NHS clinicians, Dr Meenal Viz and Dr Nishant Joshi, are challenging the lawfulness of Guidance on Covid-19 Personal Protective Equipment (PPE) published by the Department of Health and Social Care and Public Health England on 17 April 2020. They are also challenging the Government’s failures to source PPE domestically and from the EU.

Dr Viz is a clinical fellow in medicine and Dr Joshi is a GP trainee. They are both employed by the NHS. Both are British Asians and Dr Viz is pregnant. Both have been exposed to patients with COVID-19 and both are concerned that current PPE guidance and availability is inadequate to provide them with appropriate protection from infection.

In a pre-action letter sent to the Secretary of State for Health and Public Health England today, Dr Viz and Dr Joshi are challenging the PPE Guidance on the bases that:

  • It does not comply with duties in UK legislation regarding health and safety at work and regarding the NHS.
  • It is not in line with the international standards set by the World Health Organisation and falls short of recommendations previously published by PHE.
  • It exposes healthcare workers to a greater risk of contracting COVID-19 and fails to address the more significant risks faced by black, Asian and minority ethnic healthcare workers.
  • It is unclear and has resulted in inconsistent practices across NHS Trusts.
  • It fails to make clear the level of risk faced by healthcare workers depending on the level of PPE they can access or that healthcare workers have a right to refuse to work without adequate PPE.
  • The list of aerosol generating procedures to was amended to exclude cardiopulmonary resuscitation, which is not in line with international guidance by the WHO.

Because the PPE Guidance affects decisions made by NHS Procurement, NHS Employers and Health Education England (which has accepted that it is a second employer for junior doctors), they have been included as interested parties in this challenge and have also been sent a copy of the pre-action letter.

The second aspect of the challenge concerns apparent systemic organisational failures on the part of the Government to source PPE. This part of the challenge seeks confirmation from the Secretary of State that he is urgently taking appropriate steps to source PPE.

Estelle Dehon, who is one of the barristers representing Dr Viz and Dr Joshi, said:

The impact of the PPE Guidance on those working for the NHS was immediate and serious. It is not in line with international guidance that takes into account the practical effect of equipment shortages. This challenge has been brought in the hope of securing swift, realistic changes to the Guidance, bringing it into line with laws protecting healthcare workers and patients. The challenge to the Government’s systemic operational failures in sourcing PPE aims to secure urgent assurances that appropriate steps are being taken to obtain PPE and to prevent further dilution of protections for healthcare workers.

Dr Joshi and Dr Viz, who are husband and wife, said:

We are incredibly concerned at the ever-growing numbers of healthcare workers who are becoming seriously unwell and dying due to COVID-19. It is the government’s duty to protect its healthcare workers, and there is great anxiety amongst staff with regards to safety protocols that seem to change without rhyme or reason. Every time a healthcare worker becomes hospitalized with COVID-19, it exacts an extraordinary toll on our friends, family and colleagues. To sedate and ventilate your own colleague takes a mental toll on the entire workforce. The government owes an apology to these bereaved families, many of whom were unable to be with their loved ones in their dying moments. Their trauma and grief is unimaginable – we want to ensure that no other family has to endure this suffering. All we ask for is accountability from decision-makers, and that all evidence leading to these decisions should be published and transparent. We are doctors, we are nurses and we are healthcare workers – we will be there for you in your time of need. We will be there for your family. The government needs to protect us, so that we can protect you.

Basmah Sahib, Solicitor for Dr Viz and Dr Joshi, said:

The NHS is the UK’s biggest employer. Almost all of us have a friend or loved one who is putting their life at risk to care for COVID-19 patients. The least they deserve is honesty, clear guidance and proper support from the Secretary of State to feel safe and protected at work. No healthcare worker should face disciplinary action just for requesting proper protective equipment. We hope the guidance will be brought up to the standards of the WHO and that hospitals will update their practices accordingly.”

Estelle Dehon is representing Dr Viz and Dr Joshi, instructed by Jamie Potter and Basmah Sahib of Bindmans LLP and led by Marc Willers QC of Garden Court Chambers.