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Tests of clinical judgement lawfulness

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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/ 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/ 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/ 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/ 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/ as the disease to be exacerbated, its prevalence and resultant duties of care.
  • Can a clinician demonstrate that a specific individual with ME/ 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/ 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/ somehow being ‘insufficient’ would explicitly contradict the very definition of what is known about viral risks to ME/ patients as a whole and the relapsing-remitting nature of most ME/CFS.
    • Where an ME/ 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: