Is criminal prosecution of doctors harming patient safety?
Barbara Ross
By Barbara Ross
AvMA trustee, former professional nurse and a member of NHS England’s primary care patient safety group
May 2016
Welcome to our second guest blog. This month’s blog is from Barbara Ross, a former professional nurse and a member of NHS England’s primary care patient safety group. Barbara is also an AvMA Trustee and her blog concerns a subject that has prompted some discussion among our staff and trustees. Barbara is expressing her personal view here, and we are very interested in knowing what others think on the subject.
If you would like to comment on this blog, please contact us here.
Is criminal prosecution of doctors harming patient safety?
In 2013, The Francis Report into failings at Mid-Staffordshire NHS Foundation Trust recommended that, in some cases, clinicians who harm patients through clinical negligence should face criminal proceedings. This week two GPs are appearing at Cardiff Crown Court accused of the manslaughter of 12 year old Ryan Morse through gross negligence.
This case follows the trial in January of a doctor who was cleared of the manslaughter of Frances Cappuccini, who died hours after a Caesarean birth; and a doctor and nurse who were both found guilty of manslaughter in November 2015 over the death of 6-year-old Jack Adcock. They both received two-year prison sentences, suspended for two years.
Overall prosecutions for gross negligence are rising, with just 41 prosecutions between 1795 and 1974, rising to 44 prosecutions from 1975 to 2005. Another 44 prosecutions were started between 1996 and 2005.
There will always be cases where criminal prosecution is appropriate and health professionals, like any other professional, must face up to the consequences of their actions. But we must be sure that criminal law is not being overused in medical cases, and should be reserved for the most serious examples of wilful gross negligence.
Clinical staff often work in less than ideal environments, with staff shortages, inadequate breaks, overuse of locum staff, and lack of training and supervision. Yet if mistakes are made, these circumstances are often overlooked and the staff held accountable.
Following a serious incident leading to an avoidable death, hospital managers will start an investigation. Staff are often suspended from duty during the investigation and, if they are found to have been negligent, they may face disciplinary action, a report to their professional bodies and potentially being struck off the register.
This process is very stressful and can have a damaging effect on clinical staff, colleagues and family. And it pales into insignificance compared with being interviewed by the police and prosecution for manslaughter. Yet, as a fellow trustee at AvMA remarked to me, in serious incidents he had investigated, there were almost always organisational problems that significantly contributed to the events.
I believe that if the trend for manslaughter prosecutions for medical negligence continues to increase, there is a real danger that it will undermine all the good work done to encourage a culture of openness in which the duty of candour may operate effectively. With the threat of a long prison sentence hanging over them, it is inevitable that clinicians may be tempted to cover up their mistakes and not be open and honest with patients.
In the most serious cases, and where there are institutional failings, would it not be more appropriate to consider corporate manslaughter charges? This approach could shift the focus away from individual health professionals and onto the corporate failures which place health professionals in an impossible situation and threaten patient safety. However, as we saw recently with the alleged corporate manslaughter case brought against Maidstone and Tunbridge Wells NHS Foundation Trust it seems even a corporate manslaughter case is preceded by or reliant on bringing gross negligence manslaughter charges against individual clinicians.
Barbara Ross
AvMA trustee, former professional nurse and a member of NHS England’s primary care patient safety group
Disclaimer: Please note that the views and opinions expressed in this blog are those of the author and do not necessarily reflect the official policy or position of Action against Medical Accidents.