Would criminalising healthcare professionals for wilful neglect improve patient care?BMJ 2014; 348 doi: https://doi.org/10.1136/bmj.g133 (Published 23 January 2014) Cite this as: BMJ 2014;348:g133
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Medical staff are used to working in an environment of uncertainty; where we can only influence outcomes, not control them. To try and place retrospective legal penalties on the thought process or 'motivation' of an individual at a particular moment will more often than not, create unjust persecution and imprisonment of a person who was legitimately trying their best for their patients.
The majority of doctors go into medicine with a desire to help others and though mistakes or adverse outcomes can and do occur this does not necessarily reflect malicious intent on the part of the professional, and legal persecution would end the career of an otherwise altruistic doctor who could contribute great good to society with a chance to reflect and learn from mistakes.
There is already a body in place to monitor and address badly performing doctors and I believe the way forward is to encourage openess from all staff members within the trust to raise concerns about working conditions and colleagues early that issues may be addressed before preventable problems arise.
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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.” 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.
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.
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.”  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.” 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. 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.” 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.”
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.
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
Jo Bibby argues that wilful neglect should be criminalized. But the devil is in the detail. The caveats that she cites: 'we would need clarity in the interpretation of "wilful" and thorough evaluation of its impact' and 'although legislation will hopefully deter rare and extreme cases...' underline how shaky the whole proposition is.
Doctors in the UK, uniquely amongst comparable countries, are subject to multiple jeopardies: civil legal action, employer/Trust disciplinary measures, GMC referral and even, as Christine Tomkins points out, criminal action. These processes may be used in serial or in parallel and are invariably traumatic and lengthy for both the claimants and the complained against.
Jo Bibby uses Mid Staffs in part to justify the idea of a criminal charge of 'wilful neglect'. But this is not a good example. The GMC has not proceeded with investigations against Mid Staffs doctors referred to it - and the burden of proof in a GMC case is somewhere between that of a civil and criminal court. Is it really likely that a criminal case would succeed where an action requiring a lower burden of proof is discontinued? Further, given that doctors almost invariably work in teams would an action against one mean that everyone else in the team became an 'accessory to wilful neglect'?
To my medical colleagues from overseas, this debate highlights a curious and punitive characteristic that pervades the healthcare debate in this country, once an exemplar of fairness. The UK's medical regulator, the GMC, disciplines a far greater proportion of doctors that comparable European countries - or even the USA. The NHS's civil litigation bill is now over £1 billion per year, around 1% of the NHS's total budget. Medical indemnity praemia are rising exponentially in many specialties and the cost of medical regulation is now at least an order of magnitude higher than it was two decades ago.
We could do worse than consider no-fault compensation schemes and completely redesign the proto Victorian systems for disciplining medical and nursing professionals. But the threat of criminalizing them is neither a sophisticated nor proportionate response, nor one that is likely to work.
Competing interests: No competing interests
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.
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  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
God save the Queen!
Perusing the contributions to this respected journal over recent weeks raises an uneasy question: What exactly is happening on the other side of the British Channel?
In the nation that instituted the universal health care system, the glorious NHS, a model exported to every corner of the earth (and in our case, imported to Italy), proudly evoked even in the opening ceremonies of the recent London Summer Olympics, we now begin to see questions about the very foundations of the system, along with provisions that go in the opposite direction from that originally intended by its creators (1).
Where once more than anywhere there was insistence on development of “evidence-based medicine” (2) there is now ever more talk of its continuing decline, including announcements of its collapse (3).
This is the land that gave us the European launch of “To err is human”, the American program against failure in medicine, which avoided the crucifixion of professionals who err and instead supported them in disclosure of the context that gave rise to their faults (4).
Yet this is also the land that now calls for the introduction of severe penalties for whoever errs, although thus only for cases of “wilful neglect” (5).
Once again: what’s happening here? It can’t all be reduced to the fact that the Beatles have long since gone, giving way to the new boy band, “One Direction”…
The most recent reflections on potential British penal sanctions targeted specifically at health professionals guilty of undeniable error, in the conviction that such instruments could improve the overall quality of service, is in our judgement, besides straying far from the course of the “Err is Human” campaign, openly contradictory of its declared objectives of avoiding criminalisation of error.
This is a preoccupying turn of repressive character, in a country with among the most ancient traditions of guarantee for individual rights and liberties.
In fact, our observation is that in Great Britain we see the spread of a disease elsewhere labelled as the “culture of complaint”, by none other than Robert Hughes, one of the most liberal and heterodox thinkers of the era (6).
The widespread claim to the role of victim and the profusion of grievance – wrote Hughes – give power: even if it’s only the power of emotional ransom, creating a sense of social guilt never previously registered at such a level.
There is disproportionate growth in the influence of the “victim”, with stress on claims for their vulnerability (5), and on the importance of associating with others for symbolic compensation: in this case the exemplary, punitive verdict of “guilty”.
A similar culture is also taking hold on this side of the English Channel, in Italy and other European nations (7), with the general effect being an ever-broadening sphere of action for penal law.
Occasional events have clearly upset British public opinion, such as the case of the Mid-Staffordshire NHS Foundation Trust, although this particular event has not yet been fully heard before the courts. Under these and similar circumstances, the political class is incapable of resisting the powerful demand of public opinion, which calls for broadened intervention under the penal code.
However this is an expansion that removes penal law from its historic role as an instrument of extraordinary intervention and last resort, thus pushing aside other legal sectors, including civil, administrative and deontological-professional codes, from their roles of control and compensation for damage, where they served as the most modern forms of civil jurisprudence.
Thus penal law is transformed from the instrument of response to exceptional cases, to the principle social control mechanism in the world’s mass democracies.
Today the consequences fall on (perhaps) the doctors responsible for the mistakes. Tomorrow they will be felt by the economists and directors of strategy that err.
This is the rule of the ever-expanding role of penal law.
It is a rule long known to that singular class of scholars in human nature – the great novelists (8):
“The usual objection, "What is one to do with the evil doers? Surely not let them go unpunished?" no longer confused him. This objection might have a meaning if it were proved that punishment lessened crime, or improved the criminal, but when the contrary was proved, and it was evident that it was not in people`s power to correct each other, the only reasonable thing to do is to leave off doing the things which are not only useless, but harmful, immoral and cruel. For many centuries people who were considered criminals have been tortured. Well, and have they ceased to exist? No; their numbers have been increased not alone by the criminals corrupted by punishment but also by those lawful criminals, the judges, procureurs, magistrates and jailers, who judge and punish men”.
1. Reynold L. The future of NHS –
Irreversible privatization? BMJ, 2013; 346:f1848;
2. Smith R, Rennie D. Evidence based medicine: an oral history. BMJ, 2014; 348 doi: http://dx.doi.org/10.1136/bmj.g371;
3. Spence D. Evidence based medicine is broken. BMJ, 2014; 348:g22;
4. Reason JT. Human error: models and management. BMJ, 2000; 320:768-770;
5. Bibby J. Would criminalizing healthcare professionals for wilful neglect improve patient care? Yes. BMJ, 2014; 348:g133;
6. Hughes R. Culture of Complaint. Oxford University Press, 1993;
7. Garapon A, Salas D. La République Pénalisée. Hachette Livre, Paris, 1996;
8. Tolstoy L. Resurrection (Maude Translation). Book III, Chapter XXVIII, 1899.
Competing interests: No competing interests