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Will the criminalisation of medical negligence be a help or hindrance?

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

Jeremy Hunt has unveiled plans to legislate a new criminal offence governing medical negligence; ‘wilful neglect or mistreatment.’ Medical practitioners found guilty of such a crime could face either a hefty fine, or alternatively, up to five years in prison. The proposal follows recommendations by Professor Don Berwick. He emphasised that criminal sanctions are ‘appropriate only in the very rare cases of neglect or wilful misconduct.’ Making it a rare but possible consequence of negligence is expected to act as a deterrent, without discouraging transparency and accountability in the profession.

Such proposals proceed in light of the Mid-Staffordshire NHS Trust scandal, in which a report by Robert Francis QC revealed up to 300 unexplained deaths between 2005 and 2009 caused through negligence in the hospital. One of which was that of diabetic Gillian Astbury, who was not administered with insulin regardless of the doctors’ prescription. In 2007, she slipped into a diabetic coma and consequently died. One of the nurses responsible lost her job, and the other received a caution. The case has been referred to the Stafford Crown Court for sentencing; the Trust is expected to receive a fine in excess of £20,000.

Negligent conduct is predominantly handled by tort doctrine and dealt with through pecuniary damages. The Bolam test established that a ‘doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ This was later confirmed by cases such as Bolitho (Deceased) v City and Hackney HA [1997], in which the doctor was not held liable for negligent conduct due to support from medical experts. Lord Browne-Wilkinson qualified Bolam to a certain extent by exemplifying the reference to ‘responsible’ and ‘reasonable’ practitioners. It must be certain that the experts called by the defendant had a logical basis: ‘the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that … the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter’. Although their expertise is not under scrutiny, their rationale and dependability is.  

This was further restricted in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 2 WLR 480. The Bolam test was considered applicable to cases of medical informed consent; however, the court retained a residual power to decide if a patient’s right to decide on treatment outweighs a body of opinion. Once again there is an almighty reference to a judicial logical basis underpinning these cases.

As demonstrated above, it is not a definitive test. How could it be with such a diverse range of expert opinion? Nevertheless, the role of the Bolam test is not to offer a clear-cut answer, but simply to provide the judge and jury with guidance. Without this insight, judges and lay people would be stumbling blind in the world of medical practice.

The criminal law has only interfered in cases of medical negligence on rare occasions. At the present time, doctors and nurses are able to be found guilty of manslaughter for gross failures to act. However, their actions or omissions must be the ‘operating and substantial cause’ of the prohibited result, as held in R v Smith [1959]. This is rarely the case. R v Cheshire [1991] 1 WLR 844 proposed that it is only in ‘the most extraordinary and unusual cases’ that medical negligence will be held legally responsible for the victim’s death. Judges are somewhat reluctant to interfere in medical practice.

Should Berwick’s proposal be legislated by Parliament, it will no longer be so ‘extraordinary’ for negligence to result in criminal sanction. In order for a punishment to apply, several criteria must be satisfied. Firstly, the negligence must be reckless; a ‘couldn’t care less’ attitude. The practitioner must either have considered the possible consequences of their action and considered it irrelevant, or not given time to consider it at all. These realistic consequences must include ‘risk of death or serious harm.’ Secondly, the act would not have been undertaken by a reasonable person or organisation in similar circumstances. It is clear that Berwick is not willing to overrule the Bolam test in such circumstances. The negligent behaviour must not include unintended error by the practitioner, or where the organisation has taken reasonable steps to prevent the error. The act should also be part of a process of ongoing neglect, including ‘failures to engage with, improve or address safety.’ Finally, the liability should be proportionate to the level of control the individual has. If the circumstances render their behaviour acceptable, they are not to be held criminally liable.

Whether or not the criminal law is suitable for dealing with medical negligence is an issue of controversy. It cannot be ignored that a principle aim of a criminal sanction is to punish the offender, not necessarily to reimburse the victim. A great deal of negligence in the Mid Staffordshire NHS Trust Scandal was down to wider issues such as NHS cuts. Staff shortages have put an increasing strain on the NHS to maintain appropriate supervision and treatment. More than 10,000 NHS workers have been made redundant in the past three years following government reforms. This begs the issue of who should be held accountable for medical negligence. Punishing the practitioner will not always be appropriate.

The current remedy for medical negligence includes compensating the victim or victim’s family, and if down to an individual doctor or nurse, a disciplinary action from the General Medical Council. In terms of policy, this is seemingly more suitable. David Cameron has stated that this law will not be punishing those who make mistakes, and will only concern specific cases. However, it would appear that these cases would not occur should adequate staffing and training be provided. A recent survey carried out by UNISON, a health service union, found that 55% of NHS workers believed cuts ‘had significantly impacted on patient care and safety.’

A 2012 report published by the General Medical Council, entitled ‘The state of medical education and practice in the UK’, held that the number of complaints received by the GMC about doctors has risen by 23% since 2010, and this will continue to rise. Regulatory authorities attribute the rise to both an increase in ‘patient expectations and an increased willingness to complain.’ There has also been an increase in the number of claims investigated. In 2011, one doctor in 64 was investigated, as opposed to one doctor in 68 in 2010. Not all complaints are taken forward by the GMC, as whilst they raise a concern about the patient’s one-off experience, they do not demonstrate an issue of the doctor’s capability to practise. Interestingly, the number of cases about how doctors interact with their patients has increased. In 2011, allegations concerning effective communication rose by 69%. This once again would suggest that a decrease in staffing has had a serious effect on the attention, care, and time that the patient receives.

Oliver Quick, in his article ‘Patient Safety and the Problem and Potential of Law’, reminds us that a fear of litigation ‘discourages the open admission of error’. This will be even more extreme once negligence is criminalised. Another of Jeremy Hunt’s aims is to promote transparency in the profession by introducing a legal duty of candour. It is improbable that the criminalisation of negligence will advance this objective. Instead, it will put the fear of punishment into the minds of practitioners, discouraging ‘an open culture’, and perhaps even hindering their willingness to work in the more complex cases. ‘Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work.’ (Bolam v Friern Hospital Management Committee, per Denning LJ).

Two main issues come to light regarding the criminalisation of medical negligence. The first is the capability of judges to decide on medical practise. The purpose of the Bolam test was to enable judges to obtain expert knowledge on an area somewhat foreign to them. Whether Parliament will be able to translate this into legislation, and whether the judiciary will be able to interpret this translation with due respect to medical practice, is without a doubt an issue of contention. Secondly, should a judge come to the conclusion that a ‘wilful neglect or mistreatment’ has occurred, what is to say that the criminal law is the best mechanism to deal with it?  If Parliament’s intention is not to punish wrongdoers, then surely a fine or prison sentence is not suitable to mend the problem. With a decreasing number of practitioners per patient, putting guilty practitioners into prison and discouraging openness of error is not ideal. Instead, a re-allocation of public funding should be considered into dealing with the issue of staff shortages and inadequate training. There is already compensation available for those wronged and disciplinary actions for those wrongdoers. Is it really necessary to label the doctors and nurses, whose time and attention have been spread too thin, as criminals?

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Tagged: Criminal Law, Medical Law & Ethics

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