Irrelevance of official edicts and officialised redistribution of liabilities to frontline balance sheets (vaccination and NICE guideline examples)

Neither obfuscation, incorrect pronouncement nor under-informed lack of clarity from governmental, regulatory/self-regulatory or other authorities can change the law, terminal frontline legal requirements nor resultant liability profiles. All decision-making is unavoidably limited by requirements of law, with the elevated likelihood of unlawful decision-making in this field similarly prejudicing top-down communication. The structural difference is only organisational in nature – upward reference or unsolicited downward communication can scale the generation and/or redistribution of liabilities across entire frontline services and its contracting parties. In addition to being captive to the overall normalisation of unlawful behaviour, top-down communications can also “pass the hot-potato”. This is particularly incentivised where there is an unwillingness to address ongoing failures that carry high profile risks, instead choosing to firewall liabilities at lower levels.

More specifically, parties that act unlawfully do not escape duties of care or liabilities merely because they share habitual misconceptions with office-holders about ME/CFS etiology or pathology that are contra-scientific or contra-policy, and are thus unlawful. Government bodies are bound by Acts of Parliament. Neither the Chief Medical Officer (CMO), JCVI (Joint Committee on Vaccination and Immunisation), NICE (National Institute for Health and Clinical Care) nor a Secretary of State have control over the relevant extant law nor the reality of liability generation. These bodies cannot redefine statutory discrimination nor how it is informed, even where patients do not communicate legally-relevant policy and clinical considerations at the point of care (which can merely exacerbate the aggravated nature of persistently unlawful discrimination or other contexts).

As discussed widely above, frontline services are often known to unlawfully decline decisions regarding post-viral patients. As discussed in the Freedom of Information enforcement-risk example and regarding model based decision-making, “computer says no” is a common and legally untenable reply when breaching requirements. Equally, the analogous and commonly made statement that “we don’t set the rules” frequently masks a direct mistruth, which accounts neither for actual government pronouncements, the conclusions they actually reinforce nor the law.

Example 1: Group 6 covid vaccination eligibility – obfuscation, officialised encouragement of law breaking and frontline liability firewalling

Further to Example 2 in the section regarding unlawful clinical judgement in determining Group 6 eligibility for ME/CFS patients (link), the lawful limits on governmental and agency decision-making and the firewalling of liabilities at lower levels must be highlighted. Official edicts are unable to lawfully contradict these requirements. Moreover, explicit statements by officials of lawful requirements are not necessary per se (albeit would have been optimal). The context is generalisably instructive.

Given the clear legal situation outlined above, had the JCVI responded negatively to CMO’s referral of ME/CFS Group 6 status, such a negative reply would 1) merely have been a discriminatory act in itself in statutory and policy terms, which would 2) have been highlightable as retrospective obfuscation of the very frontline discrimination that had been the subject of the preceding request to the CMO by the ME Association. The JVCI’s reiteration of ME as a neurological condition in the specific context of covid vaccination merely repeated known policy classification. The JCVI’s reiteration of the requirement that GPs use clinical judgement was a mere prescription of “1+1”, without stating the answer as “2”. This results in obfuscation versus a frontline medical audience that suffers from empirically quantified lack of knowledge and contrascientific belief systems, frequently already manifesting in analogous unlawful decision-making e.g. versus influenza, which inherently prejudices the JCVI response regarding ME/CFS and Group 6 and resultant frontline decision-making.

That the JCVI or the Secretary of State did not spell out the unavoidable requirements of their replies regarding ME/CFS is also of no importance to the conclusions of applicable law. It merely created space that:

• invited primary care bodies to act unlawfully further
• created risks for under-informed GP surgeries
• firewalled those liabilities at the frontline, away from the government and the JCVI
• kicked the can of medical education down the road

There have been numerous instances where Clinical Care Commission Groups (CCGs), NHS Boards or other authorities have specifically contradicted or undermined JCVI guidance, which defines the nature of lawful implementation of policy. These bodies directly encouraged demonstrably unlawful practice, from which they may not always share the frontline liabilities that they create.

An example of this is in Scotland, where the Clinical Director of Healthcare Quality and Strategy offered a statement to the devolved Parliament that undermined the applicable JCVI and Green Book requirement to apply clinical judgement regarding exacerbation of underlying conditions. This led to Scottish surgeries being forced to ignore the statement outright, so as to ensure lawful clinical judgement that is compliant with the JCVI and avoid patient harm/liability generation. This has since forced the Scottish CMO office to reissue a correct statement for Scotland, so as to no longer directly encourage unlawful discrimination on the basis outlined above. However, this new communication merely obfuscates matters procedurally, passing each case on to the local NHS Board COVID-19 vaccination contact – without changing the terminal legal reality. Again, this merely distributes and contains liability for any unlawful clinical judgement away from central government.

This cumulative obfuscation directly led to only 40-50% of GP surgeries across the entire country correctly complying with an assumption of Group 6 status for ME/CFS patients. Regardless of lawfulness, the similar proportion of lawful decision-making amongst practices demonstrates that lawful clinical judgement is not ‘peculiar’ GP behaviour, further informing the combined scientific, policy and legal conclusions (albeit unnecessarily).

Example 2: NICE and lawfulness of guideliness

Identically to the unavoidable and full range of constraints defined and implied by law and policy that are outlined in this document, the National Institute of Health and Clinical Excellence is no less bound than other governmental agencies or frontline services. In short, any guidelines that can be demonstrated as being in violation of lawful requirements and/or determine, obfuscate, increase and/or maintain the likelihood of unlawful decision-making and/or harmful outcomes are not merely open to challenge. They would necessitate their avoidance and documentation of applicable reasoning. Any organisation or body of state that takes action or litigates to enforce administration of unlawful outcomes is open to both litigation and reputational harm.

The short-circuited 2009 judicial review of the abortive 2007 NICE guidelines on ME/CFS is instructive in this regard. The complaints and the wider circumstances have since been found to be correct, sufficient and/or reasonable. It can be argued that the 2009 judicial review would have found the 2007 NICE guidelines to have been ultra vires or otherwise legally deficient, and thus unlawful. Determining this in 2009 would have instead required the absence of apparent threats against the plaintiff’s solicitors, which undermined both immediate justice and access to any appellate process. Such questionable quasi-extra-judicial tactics have been less plausible for a number of years. Moreover, the scientific consensus has continued to reinforce what the complete finding would have been in 2009, had interference not effectively terminated the judicial review prematurely. Moreover, the increased numbers of patients with ME/CFS due to the pandemic, preceding experience of quasi-extra-judicial tactics in this field, the scale of liabilities available to group-litigation/class-action litigators and the existence of crowdfunding all result in a virtuous circle of consequential access to justice.