Re: Would criminalising healthcare professionals for wilful neglect improve patient care?
The Francis Report has shed light on the terrible failures of healthcare professionals working within NHS trusts. The sheer scale of the harms caused to patients goes a long way in making obvious that the medical profession should not be exempt from the criminal law. One of the offshoots of this is a question over introducing an offence of ‘wilful neglect’ in cases where staff (mis)conduct is deliberate and reckless. As with Jo Bibby, I would offer a “yes” in response to whether healthcare professionals should face the machinery of the criminal law, but would offer slightly different reasons.
A problem with current law, not noted by either author, is the thorny issue of ‘medical manslaughter’. (1) Currently, a doctor is only criminally liable if the patient dies. Provided causation can be proven, a healthcare professional can then be convicted of gross negligence manslaughter. This means the law is currently based on consequences. Even the most dreadful negligence leaving a patient in the most horrendous state will not arouse the interests of the criminal law if the patient survives.
This seems odd and awfully reliant on the hand of luck. Imagine two doctors of equal skill accidentally overprescribe morphine for their equally unwell patients. (2) Doctor A’s patient in hospital A1 dies as a result of the overdose. Doctor B however, by chance happens to have an extremely talented medical team on hand at hospital B1 who save her patient’s life. There is nothing between these cases but luck. Both doctors had equal concern for the patient’s wellbeing with both making simple errors, and yet one, doctor A, finds herself facing the criminal law.
Why is this important you might ask? The answer is that when compared to the shocking deficiencies in concern for patient’s wellbeing at the Mid Staffordshire hospitals, we are left wondering why the law is so picky about the patient’s surviving a doctors action or not. As Bibby points out, there is a gap in accounting for serious non-fatal harms as the result of questionable moral attitudes towards other persons. Although there is no argument provided for why this gap must be filled by criminal sanctions, I do think this is an appropriate way to fill this gap.
Wilful neglect, unlike gross negligence manslaughter, does not rely on moral luck. It is a conduct crime. (3) There would therefore be no discrepancy between doctors A and B under a charge of wilful neglect, despite the differing outcomes, for they both acted with the best intentions. This would make healthcare professionals criminally accountable based on the mental elements of the offence: deliberately or recklessly neglecting or mistreating the patient rather than simply making a sufficiently bad error. This seems fairer and more in keeping with those actions that we rightfully view as criminal as those displaying these mental states are of greater concern to the public.
Christine Tomkins worries over how the offence will be defined. This is important, as the interpretation of ‘wilful’ will be key in deciding on the criminality actions. Moreover, fleshing out how wilful neglect is defined is important in allaying fears of over-stretched healthcare professionals being unable to meet these standards. These worries are premature as experience with the mentally ill (4) and children (5) can be used to properly delineate inexcusable ill-treatment of patients.
Increasing the varieties of sanctions to match varying levels of moral culpabilities allows flexibility for prosecutors. The current position is unsatisfactory with criminal accountability relying more on the luck of outcomes than a culpable attitude towards patients. The conduct seen from Mid Staffordshire’s staff, shows appalling and blatant disregard for patient’s welfare and warrants punishment. The civil law is not enough and the crime of wilful neglect will ensure those medical professionals deserving of punishment receive it by filling the gap between the civil law and gross negligence manslaughter.
References:
1. Quick, O. (2010). Medicine, mistakes and manslaughter: a criminal combination?. The Cambridge Law Journal, 69(01), 186-203.
2. This example is largely edited from the cases of R v Prentice; R v Sullman [1994] QB 302, CA & R v Becker (2000) WL 877688
3. Alghrani, A., Brazier, M., Farrell, A. M., Griffiths, D., & Allen, N. (2011). Healthcare scandals in the NHS: crime and punishment. Journal of medical ethics, 37(4), 230-232.
4. Mental Capacity Act 2005 s 44.
5. Children and Young Persons Act 1933 s 1(1).
Competing interests:
No competing interests
29 January 2014
Joshua Parker
Medical Student
BSMS
BSMS Teaching Building, University of Sussex, Brighton, E. Sussex, BN1 9PX
Rapid Response:
Re: Would criminalising healthcare professionals for wilful neglect improve patient care?
The Francis Report has shed light on the terrible failures of healthcare professionals working within NHS trusts. The sheer scale of the harms caused to patients goes a long way in making obvious that the medical profession should not be exempt from the criminal law. One of the offshoots of this is a question over introducing an offence of ‘wilful neglect’ in cases where staff (mis)conduct is deliberate and reckless. As with Jo Bibby, I would offer a “yes” in response to whether healthcare professionals should face the machinery of the criminal law, but would offer slightly different reasons.
A problem with current law, not noted by either author, is the thorny issue of ‘medical manslaughter’. (1) Currently, a doctor is only criminally liable if the patient dies. Provided causation can be proven, a healthcare professional can then be convicted of gross negligence manslaughter. This means the law is currently based on consequences. Even the most dreadful negligence leaving a patient in the most horrendous state will not arouse the interests of the criminal law if the patient survives.
This seems odd and awfully reliant on the hand of luck. Imagine two doctors of equal skill accidentally overprescribe morphine for their equally unwell patients. (2) Doctor A’s patient in hospital A1 dies as a result of the overdose. Doctor B however, by chance happens to have an extremely talented medical team on hand at hospital B1 who save her patient’s life. There is nothing between these cases but luck. Both doctors had equal concern for the patient’s wellbeing with both making simple errors, and yet one, doctor A, finds herself facing the criminal law.
Why is this important you might ask? The answer is that when compared to the shocking deficiencies in concern for patient’s wellbeing at the Mid Staffordshire hospitals, we are left wondering why the law is so picky about the patient’s surviving a doctors action or not. As Bibby points out, there is a gap in accounting for serious non-fatal harms as the result of questionable moral attitudes towards other persons. Although there is no argument provided for why this gap must be filled by criminal sanctions, I do think this is an appropriate way to fill this gap.
Wilful neglect, unlike gross negligence manslaughter, does not rely on moral luck. It is a conduct crime. (3) There would therefore be no discrepancy between doctors A and B under a charge of wilful neglect, despite the differing outcomes, for they both acted with the best intentions. This would make healthcare professionals criminally accountable based on the mental elements of the offence: deliberately or recklessly neglecting or mistreating the patient rather than simply making a sufficiently bad error. This seems fairer and more in keeping with those actions that we rightfully view as criminal as those displaying these mental states are of greater concern to the public.
Christine Tomkins worries over how the offence will be defined. This is important, as the interpretation of ‘wilful’ will be key in deciding on the criminality actions. Moreover, fleshing out how wilful neglect is defined is important in allaying fears of over-stretched healthcare professionals being unable to meet these standards. These worries are premature as experience with the mentally ill (4) and children (5) can be used to properly delineate inexcusable ill-treatment of patients.
Increasing the varieties of sanctions to match varying levels of moral culpabilities allows flexibility for prosecutors. The current position is unsatisfactory with criminal accountability relying more on the luck of outcomes than a culpable attitude towards patients. The conduct seen from Mid Staffordshire’s staff, shows appalling and blatant disregard for patient’s welfare and warrants punishment. The civil law is not enough and the crime of wilful neglect will ensure those medical professionals deserving of punishment receive it by filling the gap between the civil law and gross negligence manslaughter.
References:
1. Quick, O. (2010). Medicine, mistakes and manslaughter: a criminal combination?. The Cambridge Law Journal, 69(01), 186-203.
2. This example is largely edited from the cases of R v Prentice; R v Sullman [1994] QB 302, CA & R v Becker (2000) WL 877688
3. Alghrani, A., Brazier, M., Farrell, A. M., Griffiths, D., & Allen, N. (2011). Healthcare scandals in the NHS: crime and punishment. Journal of medical ethics, 37(4), 230-232.
4. Mental Capacity Act 2005 s 44.
5. Children and Young Persons Act 1933 s 1(1).
Competing interests: No competing interests