COVID-19 and nurses’ right to refuse to treat: when is it justified?

 Refusing care due to lack of personal protective equipment is more complex than it might seem

• For many, refusing to treat due to PPE concerns during the pandemic may seem at odds with nurses’ ethical and professional standards
• Risk of harm at work is not new for nurses, but the pandemic has prompted unprecedented concern over increased risk to their families
• RCN guidance insists workplaces must be safe, but does not endorse refusal to treat patients

One of the defining issues of the COVID-19 pandemic is the agonising over personal protective equipment (PPE) – whether in relation to shortages, difficulties with supply and fit, or confusion over what should be worn.

Such concerns bring into focus a fundamental ethical dilemma facing healthcare professionals: when, and in what circumstances, it might be acceptable to refuse to treat patients, and whether a lack of appropriate PPE can justify such a decision.

Advice on what nurses should do if PPE is inadequate

In guidance for members published in April, the RCN set out what nurses should do if they feel they are being put in danger by a lack of suitable PPE. It said that members who followed the guidance and then took the decision not to treat would receive support from the RCN, including legal representation.

The Nursing and Midwifery Council (NMC) said in a statement it would ‘consider the context of the current pandemic, including the risks the individual registrant was exposed to’ if a concern was raised with the regulator about a registrant refusing to treat a patient because of concerns about inadequate PPE.

Writing the guidance wasn’t easy, says RCN director for England Mike Adams, but the college was responding to a need.

‘It’s the ultimate decision you don’t ever want to have to make’

‘The RCN has always had a position on refusal to treat,’ he says. ‘But we started to get calls from members asking what they should do if they didn’t have the equipment that Public Health England said they should. We needed to update our advice, so that every time a member rings we’ve got consistent advice for them.’

‘At no point have we said “you should not treat people if you don’t have the right PPE”. The guidance is about the steps you should go through if you feel you don’t have the right PPE’

Mike Adams, RCN director for England

The college has produced myriad pieces of work and guidance during the pandemic but this was possibly the hardest, he says.

‘It’s the ultimate decision you don’t ever want to have to make. You go into nursing to help people, and the idea that you are not going to is an alien concept. So there’s that ethical drive, but there’s also the question of, in protecting my own personal safety, what are the risks to my professional status? We needed to find a way to walk members through a decision-making process.’

• RELATED: Nurses can refuse to treat if they lack PPE, and we will support them – RCN

He stresses that the RCN is not encouraging people to refuse to treat. ‘At no point have we said “you should not treat people if you don’t have the right PPE”. The guidance we’ve produced is about the steps you should go through if you feel you don’t have the right PPE – how you can escalate that locally, how you can make sure it’s recorded.

‘These are all the steps you should take leading to the ultimate decision, where you refuse to treat if you are unsafe, then we would support you as a trade union.

‘We’d obviously hold the line that in the workplace people should be safe, and having the correct PPE is part of that. We’d be unequivocal in our position on that. But we didn’t tell members they should refuse to treat.’

Duty of care: protecting your family as well as your patients

For Karen Sanders, the COVID-19 pandemic changes the whole landscape of nursing ethics and duty of care.

The senior lecturer in the school of nursing and midwifery at London South Bank University believes it's introduced a new component to how nurses think about their role and their responsibilities, at home as well as to patients.

‘This pandemic has caused nurses to think in a much wider context,’ says Ms Sanders. ‘We’ve always thought about the best interests of the patient. But we didn’t so much look at the ethics of our own best interests. What this has helped nurses to realise is that you have a duty of care to patients, but you also have a duty of care to yourself, your family and friends.

‘The dilemma of PPE was about the best thing to do – how can I to do least harm? Do I really have to treat a patient at the potential risk of me or my family or friends getting COVID?’

‘You have a duty of care to patients, but you also have a duty of care to yourself, your family and friends’

Risk of harm from work is not new but the pandemic makes the scale unprecedented. ‘Nurses have always gone into work when they or their families are ill and they’ve maybe not thought in any depth about the consequences to them and their families. It’s much more in your face now.’

• RELATED: COVID-19: nurses say they are not getting adequate PPE

People have made tough choices, she says, such as care home staff sleeping in tents to avoid going home. ‘It’s opened a new door on nurses’ thinking about their duty of care. We need to explore this,’ she says.

‘There’s a whole new area that ethicists, the NMC, the RCN and everybody else needs to think about, around what you do when you know you have a duty of care, but in satisfying that you’re risking the lives of others.’

What is the right decision to make, and who says so?

Previously, says Ms Sanders, key workers did not necessarily think about these issues: they knew they had a job to do and they did it.

‘Now it’s about how do I make these decisions, what is the right decision to make, and who says so? Am I going to lose my job, or risk loss of promotion? What will other people think of me – all of those things.’

Ms Sanders has been thinking of two of the main ethical schools of thought, deontology and utilitarianism. ‘Deontology says you follow the rules, but we don’t know what the rules are, because this epidemic is new.

‘Previously you acted in the patient’s best interest and followed the Code. But do the same rules exist now if we rethink them?

‘And if you look at utilitarianism, well I don’t know how you decide how you create the greatest amount of happiness for the greatest amount of people, because that in itself brings in the whole thing around, “Well, I’ve got a family at home who I have to protect”.

‘For many of us, much as we love our patients and have a desire to care for them, the thought of bringing the infection home, leading to a family member being ill or even dying, is absolutely horrific. This is an area we’re going to have to explore for many years to come.’

What are the possible consequences of not treating?

According to Elaine Maxwell, clinical adviser to the National Institute for Health Research (NIHR) and a former director of nursing, ‘gross oversimplification’ of the PPE issue has been unhelpful.

‘Clearly there are different risks in different settings and different risks to different people,’ she says. ‘The assumption is that everybody needs a “space suit” but that’s a bit unsophisticated.’

Dr Maxwell, who returned to practice at the start of the pandemic, recommends Infection Prevention Society guidance on the most appropriate levels of PPE for particular circumstances.

‘There were undoubtedly some people at higher risk and who did not have adequate PPE,’ she says. ‘But the other thing is if you look at the statistical modelling about risk by age group, the gradient is quite striking.

‘So for a nurse in your 30s working in a care home and you have no comorbidities, what is the risk to your life? It seems it might be lower than from some other things you might be exposed to. So to single out COVID seems a bit unhelpful.

‘You have to be pretty sure the risk to you is far higher than the risk to the patient of having no care at all’

Elaine Maxwell, clinical adviser to the National Institute for Health Research and a former director of nursing

‘I remember the hysteria in the 1980s about caring for patients with HIV, and the whole thing about PPE. If we looked at nurses who refused to look after patients with HIV then, without the raised emotions of the time, I think you would say, “Hang on, how much risk were these nurses really at?”.

• RELATED: Inadequate PPE: RCN helpline receives more than 100 calls from nurses refusing to treat patients

‘I’m not saying there weren’t certain scenarios when nurses were left vulnerable, but I don’t think any nurse can decide what level of PPE they need and then refuse to care for patients if they don’t get it. The NMC got it right – if someone refuses to treat a patient, you don’t automatically support them. You look at the context.’

Ethical decision-making comes into it, she stresses. ‘It’s a cost-benefit analysis: do I have something to contribute that outweighs the risks?’

Risk assessment decisions were not always communicated to staff

Although Dr Maxwell does not underestimate the gravity of the issue, particularly as some healthcare workers have died with COVID-19, she cautions: ‘We shouldn’t reduce it to, “Anybody who won’t work because they don’t feel they’ve got enough PPE is okay,” because the consequence is that the patient gets no care.

‘You have to be pretty sure the risk to you is far higher than the risk to the patient of having no care at all.

• RELATED: ‘No PPE masks left for care homes or homecare staff’

‘And we have to look at other factors. Should some people not have been working in direct patient care because they’re high-risk? Did everybody use their PPE correctly? It’s just too complex for a straightforward refusal to work if you feel you shouldn’t”.

She believes robust risk assessment and clear explanation of management decision-making should go hand in hand. 

‘The learning is, do a proper risk assessment, and communicate it.’

Ethics in theory versus ethics in nursing practice

Duncan Hamilton, a staff nurse in respiratory care at the Royal Surrey NHS Foundation Trust and PhD student with an interest in ethics, believes the pandemic has highlighted some of the ethical issues that nurses face all the time – and says it isn’t easy.

‘When you look at something in the abstract, you can be quite clear about what you would do in a scenario, but in the real world you’ve got uncertain information, and there are huge tracts of grey areas where you’re trying to make a weighted risk assessment, at best.

‘You can’t really determine what the risk is, or really what the consequence is’

‘Especially in the situation we’ve had, you can’t really determine what the risk is, or really what the consequence is. That makes the decision-making absolutely fraught.

‘I have colleagues who work in the community, doing home visits without any PPE for quite a few weeks. I don’t know if any of them considered refusing to care for patients, but if it were me I’d be tempted. It’s about that risk assessment, which is so difficult to make.

‘There are huge tracts of grey areas where you’re trying to make a weighted risk assessment, at best’

‘As a nurse, your default is to see a person in need and want to help. We already make many sacrifices, so we’re used to sacrificing some level of our own health and autonomy. We have signed up for that in some sense.

• RELATED: COVID-19: nursing in a pandemic and how to apply ethical decision-making in practice

‘It’s not a risk-free job at any point. For example, on my ward, we quite often look after people who have TB. That’s quite risky for us, but it’s a normal part of the job.’

Every workplace should be safe

The RCN’s Mike Adams says nurses have been taught to think critically about all situations, including those where they might be at risk.

‘I worked in nurse education for quite a few years, and one of the first things you teach new students is CPR. The first step of CPR is to assess the situation and don’t go near if it’s not safe.

‘So the first message new students are taught is to assess the situation, and if you’re at risk, don’t go anywhere near.

‘That should be the message in any workplace, in any moment. There will always be an ethical decision for people to make but we shouldn’t forget the fact that any workplace should be safe for people working there.’

View our COVID-19 resource centre

Find out more

• RCN guidance on refusal to treat
• NMC statement
• IPS guidance on PPE
• University of Surrey/FutureLearn online course on ethical decision making in care