- Context of unmanaged liabilities
- Enforceable obligations
- Obligation to not negate ME/CFS legal status
- Obligation to procure ME/CFS medical education
- Obligation to not mislead or evade diagnosis and to provide sufficient detail (FND, MUS, PPS, ‘dysregulation model’ and Long Covid examples)
- Obligation to not abuse power and authority
- Obligation to recognise ME/CFS patient housebound or carer status
- Tests of lawfulness
- Risks – compliance and operational
- Unlawful clinical judgement (examples)
- Expertise risk and reputational risk – medical and legal
- Illusion of legal authority vs medical law enforcement
- Knowledge-gap risk and audit trails (examples plus research-market inefficiencies)
- Freedom of Information Act risks – flawed clinical judgement, discrimination and education refusal
- Third party risk from preceding unlawful clinical judgement
- Liability, malpractice and indemnification
- Irrelevance of official edicts and officialised redistribution of liabilities to frontline balance sheets (vaccination and NICE guideline examples)
- Compromised indemnification, insurance cover nullification and liability for lost income
- Evaluating duties of care and unmanaged risk exposures
- Risk mitigation
- Version history
These compliance documents are live pre-released drafts that are specifically not structured for scientific audiences. Specific scientific referencing can be provided in consulting contexts, not limited to practice management, claims management, underwriting or litigation support for professionals or organisations.
Copyright and redistribution rights are governed by our terms of site usage. Communication of factual or typographical errata or other suggestions is welcome. This content was originally contained here (external link), has been split into separate compliance sections on our website and is in need of significant ongoing update.
A journalistic summary of these documents for lay audiences will soon be published.
Informed by the scientific, statutory and policy contexts outlined above, the following simple tests of clinical judgement lawfulness further outline lawful policy implementation requirements, mitigating the elevated probability of normalised unlawful clinical judgement in this context. Contrary conclusions constitute unlawful discriminatory implementation of policy, an arbitrary evasion of clear wording, thus discriminating on the very basis of ME/CFS diagnosis possibility. This can be accompanied by elevated probability of additional unlawful clinical or administrative contexts (with the same patient and/or risk exposure to the entire cohort), leading to the likelihood of multiple discriminatory events in contravention of the right to be free from discrimination under the Human Rights Act 1998, against protected characteristics under the Equality Act 2010 and in contravention of the Public Sector Equality Duty. Specific examples where additional considerations lawfully negate initial liability are considered within this framework.
Informed by the scientific, statutory and policy contexts outlined above, simple tests further outline lawful policy implementation requirements, mitigating the elevated probability of normalised unlawful clinical judgement and avoiding unlawful discriminatory implementation of policy
The test rationales below are generalisable to other treatment or management scenarios, where existence or suspicion of a post-viral disease such as ME/CFS can lead to arbitrary, discriminatory, contra-scientific or other unlawful clinical or administrative judgement or decision-making. Examples can include, but are not limited to, disability parking “blue badge” assessment, deprivation or compulsion of treatments or social care measures, etc.
Test rationales are generalisable to other scenarios, where existence or suspicion of post-viral disease can lead to arbitrary, discriminatory, contra-scientific or other unlawful clinical or administrative decision-making
These specific tests are framed within examples of unlawful clinical judgement versus Group 6 eligibility for covid vaccination (criteria in the preceding section regarding unlawful clinical judgement). As demonstrated above, 1) flu vaccine scheme eligibility is more directly specific and 2) both flu and Group 6 covid vaccination eligibility schemes arrive at the same immediate conclusions prior to any individual clinical assessment:
- Can a clinician demonstrate that ME/CFS patients should be assumed ineligible/insufficiently eligible as a cohort, a priori?
- Other than discrimination, such a demonstration is impossible lawfully on the basis of ME/CFS diagnosis.
- This is versus both the current and growing scientific consensus outlined above, the clarity of the role of viral infection (largely definitional to having ME/CFS), the seriousness of ME/CFS as the disease to be exacerbated, its prevalence and resultant duties of care.
- Can a clinician demonstrate that a specific individual with ME/CFS is to be assumed ineligible/insufficiently eligible, a priori?
- Other than discrimination, such a demonstration is again impossible for a number of reasons.
- A priori assumption of Group 6 ineligibility based on ME/CFS ineligibility would merely substantiate an incidence of the blanket discrimination above and breach duties of care.
- A priori assumption of Group 6 ineligibility for a specific patient based on their individual manifestation of ME/CFS somehow being ‘insufficient’ would explicitly contradict the very definition of what is known about viral risks to ME/CFS patients as a whole and the relapsing-remitting nature of most ME/CFS.
- Where an ME/CFS patient is not allocated to Group 6 due to another valid overriding clinical judgement, this informed decision does not remove the conclusion of initial Group 6 eligibility. It merely negates it with additional clinical judgement that delays or recommends against vaccination. Requiring specific, explicit and relevant reasoning for this is proportionate and reasonable under both the Human Rights and Equality Acts and the Public Sector Equality Duty, as informed by the context of live discrimination risks fuelled by the lack of medical education that is documented empirically and by NICE.
- Where the clinician believes a diagnosis of ME/CFS is not appropriate and prefers to replace with “FND / neurasthenia / conversion-disorder” and/or other non-neurologically classified idiopathic or somatic fatigue, this would require demonstration in specific diagnostic terms that exclude ME/CFS. This in no way negates the actual initial eligibility of ME/CFS in Group 6.
Removal of an ME/CFS diagnosis without informed and shared explanation for its sudden diagnostic inapplicability again requires specific, explicit and relevant reasoning to be deemed proportionate and reasonable in the legal context. There are known examples of such cases of unlawful reclassification of patients in the UK, where the clinician merely prefers a diagnosis that does not challenge a lack of knowledge. Discrimination law and the Public Sector Equality Duty is again informed by live discrimination risks fuelled by lack of medical education, documented empirically and by NICE.
Removal of an ME/CFS diagnosis without informed and shared explanation for its sudden diagnostic inapplicability requires specific, explicit and relevant reasoning to be deemed proportionate and reasonable in the legal context
Due to empirically high ME/CFS misdiagnosis rates, this scenario also implies a risk of other serious illnesses being undiagnosed (for which the below educational resources are also relevant for frontline risk mitigation).
These tests are related to the tests of model-dictated eligibility lawfulness: