The unprecedented scale of the ongoing COVID-19 pandemic has put healthcare systems across the globe to the test.

Measures such as the setting up of field hospitals in China, USA and Italy have been introduced to cope with the increasing patient-load. Domestically, the Singapore government has also been swift to implement wide-ranging measures to tackle the rising caseload in Singapore, such as:

• restricting the number of clinics doctors can practise at to prevent cross-institutional spread;
• re-activating Public Health Preparedness Clinics (PHPCs) and advising doctors to provide 5-day medical certificates for patients with respiratory symptoms;
• advising healthcare institutions to immediately stop or defer accepting new non-Singapore resident foreign patients and to encourage current foreign patients to seek continued care in their home countries, to conserve limited healthcare resources to cater to managing COVID-19 cases and existing needs of local patients;
• activating a collaboration between public and private hospitals to transfer well and stable COVID-19 patients to selected private hospitals, so as to free up public hospitals’ capacity to care for more seriously-ill COVID-19 patients; and
• setting up community isolation facilities to house COVID-19 patients with milder symptoms, to free up hospitals for patients requiring more significant medical attention.

Further, with the recent “circuit-breaker” measures implemented by the Singapore government, all non-essential medical appointments are deferred or may be delivered via tele-consultation where appropriate, for the period of 7 April 2020 to 1 June 2020.

In this article, we examine potential legal issues that may arise from the strain of a pandemic on finite healthcare resources.

Allocation of limited medical resources

In the current pandemic, healthcare institutions and medical professionals may face difficult decisions involving the allocation of limited healthcare resources. Who decides how healthcare resources should be allocated, and to whom? Also, may these decisions be challenged?

The widespread COVID-19 outbreak has caused scarcity of medical equipment such as surgical masks, personal protective equipment, test kits, intensive care beds and respirators in many countries worldwide. This has in turn prompted the issuance of various directives and guidelines by various governments around the world, for example, by:

• The Italian Society of Anesthesia, Analgesia, Resuscitation, and Intensive Care’s (SIAARTI) Clinical Ethics Recommendations for the Allocation of Intensive Care Treatments, in Exceptional, Resource-Limited Circumstances;
• Public Health England’s Guidance on COVID-19 personal protective equipment (PPE); and
• USA’s Centers for Disease Control and Prevention’s Strategies for Optimizing the Supply of N95 Respirators.

In Singapore, a COVID-19 Symptom Checker was recently launched to help people living in Singapore determine the steps they should take, based on their medical background and existing symptoms. The recommended steps range from monitoring the symptoms while on self-isolation, to visiting a PHPC or an emergency department at a local hospital. This gives an indication on how suspected COVID-19 patients may be triaged at healthcare institutions.

Medical practitioners may welcome guidelines from the relevant health and regulatory authorities on allocation of resources, as they may rely on such guidelines instead of being compelled to make these difficult decisions themselves. Indeed, a patient-facing medical practitioner may also be put in a position of conflict, if he has to decide between the best interests of a particular patient and the interests of society at large, potentially having to employ utilitarian notions of distributive justice (e.g. allocating resources to patients with higher chances of survival).

Despite healthcare workers doing their best to manage in a difficult situation, individual patients who are adversely affected by such resource-allocation decisions may resort to challenging such decisions e.g. by bringing their case before the Courts by way of judicial review, particularly where resource allocation is performed in compliance with guidance or directions from national healthcare authorities. To the best of our knowledge, there have not yet been any local cases involving challenges of healthcare resource allocation. Nonetheless, should the issue arise, the Singapore Courts may well take reference from similar precedent cases litigated before the English Courts (prior to the COVID-19 outbreak).

In England, various patients have used the judicial review process to challenge their healthcare provider’s decisions to delay the surgeries that were said to be “desperately needed”, in favour of more urgent cases due to medical shortages such as lack of intensive care beds (for example, in R v Central Birmingham HA ex p Walker (1987) 3 BMLR 32 and R v Central Birmingham Health Authority, ex parte Collier (1988); R. v Cambridge Health Authority, ex parte B [1995] 2 All ER 129).

The English Courts have traditionally been reluctant to substitute the court’s judgment for that of the health authorities (i.e. National Health Service) and/or the medical practitioners involved (who would be in the best position to make decisions on the ground), and have limited judicial intervention to cases where the claimant demonstrates Wednesbury unreasonableness. [Wednesbury unreasonableness is proven when the claimant establishes that a decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind could have arrived at the same decision.]

The test of Wednesbury unreasonableness has been applied in Singapore in the context of the judicial review of administrative decisions, and has been recognised by the Singapore Courts to involve a high legal threshold (see, for example, Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2014] 1 SLR 1047 at [67]).

In the event that court action is sought on resource-allocation decisions made in the context of the COVID-19 outbreak, it is likely that the Singapore Courts would adopt a similar approach of limited curial intervention, especially given the unprecedented global impact of the COVID-19 pandemic. The Singapore government’s emphasis on effective containment of the outbreak would be a factor that the courts will very likely take into consideration.

Standard of care in pandemic situations

The Singapore Courts have recognised that the care provided by medical practitioners in an emergency care setting should be assessed in the context of the limitations of its high-volume, high-intensity, time-critical, overwhelming environment (see Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] 3 SLR 1063 at [82] to [85]).

By analogy, the stress on our healthcare infrastructure by the ongoing COVID-19 pandemic will almost certainly be a factor that is taken into consideration in assessing the standard of care expected of medical practitioners in this current climate.

Among patients suspected to be suffering from COVID-19, it is reasonable for medical practitioners to tailor the level of medical care to be given to each patient depending on the severity of his / her presenting symptoms at the time of consultation (see for example, the Ministry of Health’s decision to send patients awaiting results of their COVID-19 swab tests home and isolate themselves, as this has been considered to pose the lowest risk of exposure to others). In the unfortunate event that a patient’s condition worsens while awaiting results or treatment, the management would likely be found defensible, provided that the initial assessment was in accordance with the prevailing standard of care.

Where decisions to defer non-urgent medical appointments are made, these can be justified if they serve the affected patients’ best interests: namely to protect them from possible exposure to COVID-19 infection while focusing limited resources on more pressing medical conditions. Where practicable, medical practitioners should take care to document their assessment on why they consider cases to be non-urgent such that follow-up can be deferred. Good communication is also key: resources permitting, patients should be informed of the reasons for deferred care and afforded an opportunity to ask questions about plans for follow up treatment. Effective communication may help to reduce complaints and litigation risk.

Conversely, there may also be patients who do require timely treatment, but are reluctant to proceed with their scheduled treatments or procedures due to concerns about the pandemic. In such cases, the treating doctors should explain to the patients why timely treatment is necessary, and the risks and consequences of postponing it. If a patient with mental capacity understands the risks and consequences of a delay, and still chooses to defer treatment, his autonomy should be respected. The discussion and the patient’s decision should then be documented in detail in the medical records.

Conclusion

While we have analysed the above legal issues based on existing precedents and principles, COVID-19’s impact on the global healthcare system will be on an unprecedented scale, and has already put a strain on many healthcare systems around the world. It remains to be seen how such cases will be dealt with, if litigated before the Singapore Courts, but courts will very likely take a pragmatic approach given the nature of the crisis.