No rule, no accountability: Why intensive care needs a statutory triage framework

During the first wave of COVID-19, intensive care clinicians across England faced the prospect of making decisions about access to mechanical ventilation without any nationally endorsed and publicly available framework governing prioritisation. Local criteria were developed under extraordinary pressure, differed between organisations, and were largely inaccessible to patients and families. The UK COVID-19 Inquiry has now recognised this absence of a national framework as a governance failure and recommended that one be established before the next pandemic. ¹

The Inquiry’s recommendation is welcome. It should not, however, mark the end of the discussion. The central question is not simply whether a framework should exist, but what constitutional status such a framework requires if it is to protect patients, support clinicians and command public legitimacy.

It is worth being precise about what such a framework is, and is not, for. Intensive care already operates as a rationed resource under ordinary conditions: admission and discharge decisions, the management of bed occupancy, and judgements about which interventions are appropriate for a given patient are made daily, and rightly so.^2,3 This everyday rationing is inherent to the specialty, is exercised case-by-case, and is already governed adequately by professional judgement, clinical guidance and, where necessary, the ordinary avenues of legal and regulatory accountability that apply to any clinical decision. Nothing in this piece proposes to displace that discretion or to legislate for it.

What changes in a pandemic is not the fact of scarcity but its character. Rather than sequential decisions about what is clinically appropriate for one patient assessed on their own facts, a severe pandemic can force comparative decisions across an entire population of patients competing for a resource that has become genuinely, system-wide insufficient rather than locally or temporarily stretched. ⁴ It is this population-level, comparative function – not the ordinary clinical rationing that already occurs in intensive care – that this piece argues requires democratic authorisation. The statutory duty proposed below is triggered only in those circumstances, not as a standing instrument for routine practice.

The experience of 2020 demonstrated that responsibility for determining allocation criteria of this comparative, population-level kind migrated from democratic institutions to bedside clinicians. The Intensive Care Society pressed for a single, publicly available national framework; NHS England declined to publish one, wary of how such a document might be read. ⁵ The consequence was that clinicians were left to work within locally generated criteria that lacked national authority.

The subsequent litigation in Thomson tested this directly and confirmed that ministers could not be compelled by judicial review to issue a national framework. ⁵ What the judgment did not do is worth dwelling on: nowhere did the court find that government lacked the statutory means to publish one. The powers were there and went unused. Put plainly, we did not lack the legal tools; we declined, as a matter of policy, to pick them up.

Guidance undoubtedly has an important role within critical care. Nevertheless, guidance alone cannot ensure that nationally applicable prioritisation criteria will exist before the next emergency. It creates no continuing legal obligation to prepare, no guarantee of public consultation and no requirement for parliamentary accountability.

This is not a hypothetical risk. NICE’s own COVID-19 critical care guideline, published within days of the first UK lockdown, applied the Clinical Frailty Scale to all adults without prior consultation with disabled people or their representative organisations, and was revised only after being threatened with judicial review on the grounds that it risked unlawfully discriminating against younger patients and those with stable long-term disabilities. ⁶ The correction, when it came, was prompted by litigation risk rather than by any deliberative process, illustrating precisely the gap that a statutory duty to consult would close.

The principle is simple. Decisions governing access to life-saving treatment derive legitimacy not only from the criteria applied, but from those criteria being publicly knowable before they determine individual outcomes. Transparency after the event cannot substitute for publicity before scarcity.

For that reason, Parliament should legislate rather than leave this to policy. In practice this means government would be obliged, well before any crisis, to work out and publish who the framework applies to and how, to test that thinking against clinicians, patients and disabled people’s organisations, and to say clearly what event would bring the framework into force and how Parliament would be told once it had. None of this reaches into the consulting room. What it does is put the difficult, population-level judgements where they belong: settled and answerable to the public in advance, rather than improvised at the bedside under pressure. Clinicians would still exercise professional judgement in applying the framework to the patient in front of them; they would simply no longer be the ones who had, in effect, written the rule first.

It might be argued that strengthened national guidance would suffice. This underestimates the constitutional weight of decisions on access to life-saving treatment under conditions of extreme scarcity: these are ultimately decisions about the allocation of public resources, and so require democratic ownership. Clinical judgement should operate within that framework, not substitute for it.

A framework of this kind would also face genuine practical barriers, and these deserve acknowledgement rather than elision, since legal robustness alone will not secure clinician confidence. The literature on pandemic triage consistently recommends that these comparative decisions be made by dedicated triage teams rather than by the treating clinician alone, partly because doing so distributes the moral burden of the decision and may reduce the risk of moral injury among frontline staff. ⁷ Yet the composition of such teams, their decision-making pathway, and their relationship to existing clinical governance structures remain largely unspecified in both national and international guidance produced to date. A statutory duty to prepare a framework should therefore extend beyond publishing allocation criteria in the abstract; it should also require the prior design of the operational infrastructure needed to apply them – defined triage team membership, escalation pathways, and mechanisms for real-time ethical support at the bedside. Without that detail, even a legally sound framework risks proving unworkable at the point of use. Securing genuine buy-in from clinicians, rather than mere compliance with a legal instrument, depends on this operational work being done well before, rather than during, the next emergency.

For clinicians, the absence of such a framework is not simply a governance abstraction. Without a lawful, publicly authorised set of allocation criteria, the individual clinician making a rationing decision bears both the clinical and the moral weight of that decision alone, and does so under the shadow of subsequent scrutiny, coronial or otherwise, that a properly authorised framework would direct toward government rather than the bedside. Local variation between trusts, itself unavoidable in the absence of a national standard, risks treating clinically similar patients differently depending only on which hospital admits them: a form of unwarranted variation that undermines both equity of access and public confidence in critical care. A statutory duty to prepare and consult upon national criteria would not remove clinical discretion from the bedside. It would instead ensure that discretion operates within democratically authorised boundaries, sparing clinicians the burden of having, in effect, to write the rules they are then asked to apply.

The next pandemic is widely regarded as a question of when rather than if. ⁸ Intensive care clinicians deserve more than reassurance that guidance will be available. They deserve the certainty that the principles governing the gravest decisions in medicine have already been debated publicly, authorised politically and accepted as part of national preparedness.