Re: Would criminalising healthcare professionals for wilful neglect improve patient care?
When things go wrong “the usual human response is to apportion blame, demand retribution and compensation, and seek assurance that the error will not occur again.”[1] The law has an important role in meeting society’s need for accountability in such circumstances, and one way this may be achieved is via the criminal law. However, with harm causing events in medicine involving conduct ranging from the blatantly reckless to a momentary slip, the difficulty is to find a morally meaningful and just system of culpability. There currently exists significant variation in the ambit of the criminal law in relation to patient harm in different jurisdictions. As the United Kingdom considers criminalising healthcare professionals for wilful neglect, it may be helpful to consider the experiences of others.
While English law requires more than simple negligence to justify criminal prosecution in cases of patient harm and is generally limited instances of death, criminal proceedings can be initiated in Switzerland for any negligent act that causes non-fatal bodily injury or death (involuntary manslaughter), pursuant to Articles 125 and 117 of the Swiss Penal Code. In a recent study conducted in Switzerland, 23 key medico-legal informants were interviewed to explore their general attitudes towards medical errors. The issue of criminal liability emerged as a major theme.[2]
Many of the participants expressed concerns that Switzerland currently has the threshold for criminal liability set too low, with any negligent act that results in bodily injury a potential candidate for a criminal investigation. While criminal cases occur infrequently, participants were concerned about the significant negative impact involvement in such a case can have on clinicians, often destroying their professional lives and reputations and having a significant impact on their personal lives and health, but often not resulting in a conviction. Criminal cases were often contrasted to civil liability cases. While civil liability was seen to be an adversarial system taking place between equals which carried no stigmatisation, the criminal law occurred between the powerful state and a citizen and had wider implications than simply paying monetary damages. Participants thought that clinicians’ fears about criminal liability were a major barrier to error communication and quality improvement, leading to defensive statements denying errors or general statements to avoid admissions of responsibility. Although participants thought that the option of criminal liability needed to be there for “extreme cases”, many felt it was inappropriate to be treating clinicians as criminals for making unintentional slips or mistakes that result in harm.[2]
Indeed, there are a number of factors that arguably make the use of the criminal law for any medical error, regardless of its outcome, inappropriate and likely to do more harm than good.
Criminally punishing clinicians who have harmed patients through medical errors in order to deter others from making the same mistakes in the future “depends on the questionable prior premise that it is actually possible to deter error.” [3] Errors are unintentional, made by people trying to do the right thing but who end up doing the wrong thing. Criminally punishing individual clinicians in such cases is therefore unlikely to reduce the incidence of medical errors.
It also appears inappropriate to criminally punish an individual clinician for medical errors on the ground of causation. Research in recent decades has demonstrated that most errors are “not the outcome of individual incompetence, but of an entire system not adapting quickly enough to cope with the changing complexity of the world it is designed to manage and control.”[4] Typically, many events, all necessary and only jointly sufficient, are needed to align to result in a harm causing error that that might have been avoided if any one of the events had not occurred.[3] Most errors cannot, therefore, be causally attributed solely to the immediate actions of an individual.
Criminally prosecuting well-intentioned clinicians for making errors is also unlikely to improve patient safety or promote the communication of errors, indeed, there is a real danger it will do just the opposite. The use of the criminal law is almost always counterproductive to finding out why things went wrong and what to do about it, with statements about events given during proceedings “almost of necessity defensive, limited, adversarial and self-preserving.”[4] Indeed, prosecuting “an individual can protect an unsafe system from scrutiny and therefore preclude that institution from learning and improving the systems for treatment and care - an outcome that is not in the public interest.”[5]
For the criminal law to be morally meaningful and just in relation to patient harm, I support the growing international calls for the focus of the criminal law in the context of patient harm to be upgraded and narrowed to willful and reckless conduct.[6,7] The criminal law should be pursuing clinicians who do not care, instead of those who try to care but make an error.[6]
References
1. Runciman WB, Merry AF, Tito F. Error, Blame, and the Law in Health Care – An Antipodean Perspective. Ann Intern Med. 2003;138:974-979.
2. McLennan S, Elger B. Criminal Liability and Medical Errors in Switzerland: An Unjust System? Jusletter, 27 January 2014. Available at http://jusletter.weblaw.ch/article/en/_11937
3. Merry A. How does the law recognize and deal with medical errors? J R Soc Med. 2009;102:265-271.
4. Dekker SW. Criminalization Of Medical Error: Who Draws The Line? ANZ J Sug. 2007;77:831-837.
5. McDonald, Fiona. The criminalisation of medical mistakes in Canada: a review. Health Law Journal. 2008;16:1-25.
6. McDowell SE, Ferner RE. Medical manslaughter: More prosecutions won’t ease the problems for lawyers, doctors, or patients. BMJ. 2013;347:f5609.
7. Paterson R. From prosecution to rehabilitation: New Zealand’s response to health practitioner negligence. In: Griffiths D, Sanders A, editors. Bioethics, Medicine and the Criminal Law: Medicine, Crime and Society. Cambridge: Cambridge University Press; 2013. pp. 229-247.
Competing interests:
No competing interests
05 February 2014
Stuart R. McLennan
Research Assistant
Institute for Biomedical Ethics, University of Basel
Rapid Response:
Re: Would criminalising healthcare professionals for wilful neglect improve patient care?
When things go wrong “the usual human response is to apportion blame, demand retribution and compensation, and seek assurance that the error will not occur again.”[1] The law has an important role in meeting society’s need for accountability in such circumstances, and one way this may be achieved is via the criminal law. However, with harm causing events in medicine involving conduct ranging from the blatantly reckless to a momentary slip, the difficulty is to find a morally meaningful and just system of culpability. There currently exists significant variation in the ambit of the criminal law in relation to patient harm in different jurisdictions. As the United Kingdom considers criminalising healthcare professionals for wilful neglect, it may be helpful to consider the experiences of others.
While English law requires more than simple negligence to justify criminal prosecution in cases of patient harm and is generally limited instances of death, criminal proceedings can be initiated in Switzerland for any negligent act that causes non-fatal bodily injury or death (involuntary manslaughter), pursuant to Articles 125 and 117 of the Swiss Penal Code. In a recent study conducted in Switzerland, 23 key medico-legal informants were interviewed to explore their general attitudes towards medical errors. The issue of criminal liability emerged as a major theme.[2]
Many of the participants expressed concerns that Switzerland currently has the threshold for criminal liability set too low, with any negligent act that results in bodily injury a potential candidate for a criminal investigation. While criminal cases occur infrequently, participants were concerned about the significant negative impact involvement in such a case can have on clinicians, often destroying their professional lives and reputations and having a significant impact on their personal lives and health, but often not resulting in a conviction. Criminal cases were often contrasted to civil liability cases. While civil liability was seen to be an adversarial system taking place between equals which carried no stigmatisation, the criminal law occurred between the powerful state and a citizen and had wider implications than simply paying monetary damages. Participants thought that clinicians’ fears about criminal liability were a major barrier to error communication and quality improvement, leading to defensive statements denying errors or general statements to avoid admissions of responsibility. Although participants thought that the option of criminal liability needed to be there for “extreme cases”, many felt it was inappropriate to be treating clinicians as criminals for making unintentional slips or mistakes that result in harm.[2]
Indeed, there are a number of factors that arguably make the use of the criminal law for any medical error, regardless of its outcome, inappropriate and likely to do more harm than good.
Criminally punishing clinicians who have harmed patients through medical errors in order to deter others from making the same mistakes in the future “depends on the questionable prior premise that it is actually possible to deter error.” [3] Errors are unintentional, made by people trying to do the right thing but who end up doing the wrong thing. Criminally punishing individual clinicians in such cases is therefore unlikely to reduce the incidence of medical errors.
It also appears inappropriate to criminally punish an individual clinician for medical errors on the ground of causation. Research in recent decades has demonstrated that most errors are “not the outcome of individual incompetence, but of an entire system not adapting quickly enough to cope with the changing complexity of the world it is designed to manage and control.”[4] Typically, many events, all necessary and only jointly sufficient, are needed to align to result in a harm causing error that that might have been avoided if any one of the events had not occurred.[3] Most errors cannot, therefore, be causally attributed solely to the immediate actions of an individual.
Criminally prosecuting well-intentioned clinicians for making errors is also unlikely to improve patient safety or promote the communication of errors, indeed, there is a real danger it will do just the opposite. The use of the criminal law is almost always counterproductive to finding out why things went wrong and what to do about it, with statements about events given during proceedings “almost of necessity defensive, limited, adversarial and self-preserving.”[4] Indeed, prosecuting “an individual can protect an unsafe system from scrutiny and therefore preclude that institution from learning and improving the systems for treatment and care - an outcome that is not in the public interest.”[5]
For the criminal law to be morally meaningful and just in relation to patient harm, I support the growing international calls for the focus of the criminal law in the context of patient harm to be upgraded and narrowed to willful and reckless conduct.[6,7] The criminal law should be pursuing clinicians who do not care, instead of those who try to care but make an error.[6]
References
1. Runciman WB, Merry AF, Tito F. Error, Blame, and the Law in Health Care – An Antipodean Perspective. Ann Intern Med. 2003;138:974-979.
2. McLennan S, Elger B. Criminal Liability and Medical Errors in Switzerland: An Unjust System? Jusletter, 27 January 2014. Available at http://jusletter.weblaw.ch/article/en/_11937
3. Merry A. How does the law recognize and deal with medical errors? J R Soc Med. 2009;102:265-271.
4. Dekker SW. Criminalization Of Medical Error: Who Draws The Line? ANZ J Sug. 2007;77:831-837.
5. McDonald, Fiona. The criminalisation of medical mistakes in Canada: a review. Health Law Journal. 2008;16:1-25.
6. McDowell SE, Ferner RE. Medical manslaughter: More prosecutions won’t ease the problems for lawyers, doctors, or patients. BMJ. 2013;347:f5609.
7. Paterson R. From prosecution to rehabilitation: New Zealand’s response to health practitioner negligence. In: Griffiths D, Sanders A, editors. Bioethics, Medicine and the Criminal Law: Medicine, Crime and Society. Cambridge: Cambridge University Press; 2013. pp. 229-247.
Competing interests: No competing interests