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Doctors File Legal Challenge to PPE Guidance

Wednesday 10 June 2020

Marc Willers QC of Garden Court Chambers leading Estelle Dehon of Cornerstone Barristers represent Dr Viz and Dr Joshi, instructed by Jamie Potter of Bindmans LLP.

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Two NHS frontline doctors, Dr Meenal Viz and Dr Nishant Joshi, have filed for judicial review of the Government’s guidance on Personal Protective Equipment (PPE) following an exchange of pre-action correspondence over the past six weeks.  The challenge highlights the mismatch between the Government's guidance on Personal Protective Equipment (PPE) and the guidance set out by the World Health Organisation (WHO), including in respect of when “full” PPE is required, as well as with respect to the reuse and reprocessing of PPE.  The guidance also fails properly to warn health and social care workers of the risks they face with different levels of PPE and their legal rights to refuse to work when inadequate PPE is available.

Six weeks ago, Dr Viz and Dr Joshi set out these concerns in an urgent pre-action letter to the Government.  They are no longer willing to wait for such matters to be resolved, while their health and social care colleagues, as well as their patients, around the country continue unnecessarily to contract, and in some tragic cases, die from, COVID-19 because of inadequate PPE.  A disproportionate number of the deceased are BAME workers, and the challenge also raises the Government’s failure properly to consider the impact on BAME health and social care workers. 

On 28 May 2020, Dr Viz and her colleagues observed a 237 second silence - one second for every healthcare worker who died on the line of duty during this pandemic. Many of these deaths could have been avoided if it wasn’t for the Government’s failure in protecting healthcare workers across the country.

The Government have also refused to allow Dr Viz and Dr Joshi to publish their initial responses to the pre-action correspondence so that others can assess the adequacy of their approach to PPE.  Our clients will push in any proceedings to ensure such documents are made public.  

Marc Willers QC of Garden Court Chambers, barrister for Dr Viz and Dr Joshi, said: 

"In the midst of the COVID-19 pandemic it is vital that our healthcare workers are supplied with adequate PPE so that they can work safely when tending to their patients. Our clients are bringing these proceedings against the Government in order to ensure that those on the frontline have PPE which meets the standards laid down in WHO guidance. Clapping for healthcare workers on a Thursday night showed we care for them but it is the provision of adequate PPE that will protect them from harm now and in the future.

We heard today the Prime Minister acknowledge the disproportionate impact of COVID-19 on BAME healthcare workers and say that the Government was working hard to ramp up testing for healthcare workers but he said nothing about the revision of the PPE guidance in order to give them greater protection from catching the disease in the first place."

Jamie Potter, Partner at Bindmans LLP and solicitor for Dr Viz and Dr Joshi, said:

“As frontline doctors, Dr Viz and Dr Joshi understand the operational pressures faced by Government better than most, but they, along with all other health and social care workers, remain entitled to lawful and transparent guidance on the use of PPE and the risks they are facing on the frontline of responding to this national crisis.  Accordingly, we have today filed judicial review proceedings seeking to challenge that guidance with a view to bringing into line with WHO guidance as well as human rights legislation.  This is important not just in the current crisis, but also to any ‘second spike’ or future pandemic.”

Dr Viz and Dr Joshi said:

“We don't want to be doing this. We didn't plan on doing this. We're doctors in a pandemic. We want to focus on saving lives and stitching this country back together. Frankly, in our limited time off, we would both rather be phoning our families and getting our baby's cot together. We haven't seen many of our closest relatives in over three months. But we have been pushed into taking action by the Government’s refusal to address the issues we have raised.”

Dr Viz and Dr Joshi are raising funds for the case through Crowdjustice, where they provide regular updates and background to their story. Here is a link to their crowdfunding page.

For more information on the story, please view the video here.

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