Coronavirus surgery cancellations: what are my rights?

The NHS has cancelled all non-urgent surgeries for three months from April 15. The aim is to free up a third of the 100,000 hospital beds in England. The head of NHS England, Sir Simon Stevens, said the purpose of the cancellations is to stop hospitals from becoming overwhelmed and to limit the exposure of healthy people to the virus. He said: “First of all we are suspending elective non-urgent surgery with an assumption that will be suspended everywhere from 15 April at the latest for at least three months, with a discretion for hospitals to take action earlier if they need it.”
If you were due to be treated in hospital after April 15, there are a number of things you can do. Express.co.uk spoke to Kate Goodman, a Senior Solicitor at UK medical negligence law firm Patient Claim Line to find out what they are.

Is it commonplace for operations to be cancelled on the NHS?

The cancellation of non-emergency operations is nothing new in the NHS, according to Ms Goodman.

She said: “Every year during winter, operations are cancelled due to the lack of availability of beds and to ease the pressure on the NHS at a time when demand for services is at its height.

“It has repeatedly been suggested that delaying an epidemic, rather than preventing it altogether, may enable the NHS to be able to cope better in the Spring and Summer months when demand for health services reduce.

“However, this has potential ramifications for patients who are waiting for non-emergency surgeries, such as knee and hip replacements.”

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What are my rights if my operation has been cancelled due to COVID-19?

If your operation is cancelled due to the COVID-19, there are a number of things you can do.

Ms Goodman said: “The NHS has a maximum waiting time for non-urgent referrals of 18 weeks.

“This means that from the date of your referral by your doctor, you should be seen and preferably, undergo treatment within 18 weeks.

“This target, however, is not always met and different hospitals have different waiting times for surgery.

“It is not uncommon for a hospital to have a waiting time of twice this for some procedures.

“It is also foreseeable that the 18-week target may well be suspended entirely in the wake of a COVID-19 outbreak.

“One can also anticipate that once we are over the worst of COVID-19, there will be a significant backlog of non-emergency procedures which may push surgeries back further.

“If your procedure has already been cancelled on the day of surgery, then you should be offered another date for the procedure within 28 days, or the hospital can fund the treatment at a date and hospital of your choice.

“If the hospital does not comply with this, you have a right to complain to PALS at the hospital, or the Clinical Commissioning Group who referred you for treatment.

“However, it is more likely that surgeries will be cancelled well before the date of surgery.”

In this situation, Ms Goodman said there is no right for you to be offered an alternative within the 28 days specified, though if your waiting time is outside the 18 weeks, you have a right to ask the hospital or Clinical Commissioning Group to move your care to another hospital.

However, it is unlikely this will result in your procedure taking place any sooner during the outbreak.

It is likely that any delays caused by COVID-19 would be a reasonable and in the public interest, and you are likely to be reliant on complaints to PALS and the Clinical Commissioning Group.

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Cancer sufferers at risk as coronavirus patients take priority

Why are operations being cancelled for cancer patients?

Some cancer patients are unable to access potentially life-saving treatments, such as operations to remove their tumours or much-needed chemotherapy.

Patients with cancer are already living under a cloud of uncertainty, and the pandemic is causing much more distress.

On March 21, 2020, NICE issued guidelines specifically dealing with patients receiving what is systemic anticancer treatments, including chemotherapy and immunotherapy.

Ms Goodman explained: “The NICE guidelines acknowledge that there may come a time during the COVID-19 outbreak where which patients receive their treatment may need to be prioritised.

“There is also a clinical decision to be made for many patients.

“Chemotherapy, for example, can make a patient immunosuppressed or immunocompromised, meaning their immune system is not as good at fighting infection.

“Cancer patients receiving chemotherapy are more likely to become seriously ill if they catch COVID-19.

“Some blood cancers and cancer affect the bone marrow can also make a patient even more susceptible to infections.”

Clinicians are therefore being asked to consider the degree that the cancer patient’s immune system has been or will be compromised by their treatment or underlying health conditions, and the risk that their cancer is not treated ‘optimally’.

This has to be weighed against the risk to the patient if they get COVID-19 when on these treatments, said Ms Goodman.

She added: “This is an extremely delicate balancing exercise and there is also no guidance for what decisions a clinician should make for individual patients, so there is likely to be differences in approach across the country.

“Hospitals will sadly also have to consider whether they have the necessary resources to safely deliver cancer treatments, including surgeries.

“The number of staff available for such procedures and treatments will diminish, and the staff that previously frequented oncology wards will also be gradually redirected to the front lines to treat those with COVID-19.

Ms Goodman addressed the concerns about the supply of some chemotherapy drugs and said this does not seem to have occurred.

Are cancer surgeries considered urgent?

She said: “At present, many cancer surgeries are not considered an emergency.

“They are certainly classified as urgent, but some surgeries, particularly where the cancer is incurable though not causing symptoms that immediately require intervention, may be classified as non-emergent.

“The NHS target for cancer treatment is for a patient to be seen within 2 weeks of referral from their GP by a consultant, after which the patient is expected to undergo any necessary investigations, and for the patient to then start the treatment within one month of the decision to treat being made.

“There will be patients whose treatments will fall outside these targets as a result of COVID-19.

“The big questions for these patients will be whether or not their cancer treatment has been compromised by any delay and/or change in their treatment.

“This will be a waiting game for these patients.

“A short delay in treatment is unlikely to have a significant impact on a cancer patient’s

prognosis but there will be patients who do unfortunately suffer as a result of the delay.

“It does seem that cancer patients and their treatments will be protected as much as possible and for as long as possible.

“If you have any concerns regarding your cancer treatment, you should first speak to your oncologist.

If you are unhappy with the response, then you may want to consider a complaint to PALs.”

Will life-saving or emergency procedure be cancelled because of Coronavirus?

“Life has not entirely stopped as a result of COVID-19 and not everyone requiring emergency hospital treatment will have COVID-19.

“The general population will still have accidents and still get ill.

“The NHS needs to continue to provide emergency and life-saving procedures for in the event that patients have to attend hospital due to non-Covid-19 conditions.

“Such procedures should take place as soon as practicably possible.

Ms Goodman explained the hospital may need to consider their available resources.

This includes things like the availability of operating theatre, surgeons and operating staff.

She added that there is likely to be increased pressure on these resources so short delays in accordance with supply and demand may be expected.

Ms Goodman said: “If a protracted delay occurs and the patient suffers harm that would usually have been avoided, this is likely to remain a breach of duty of care.”

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