Health-care providers – a different class of criminal?

Our legal system already has provisions in place capable of responding to criminal conduct by health-care workers. Image from shutterstock.com

Should Australian health-care workers face criminal penalties if they wilfully or recklessly neglect or mistreat patients? The United Kingdom is currently grappling with this question after systemic failures in care and treatment of patients at the Mid Staffordshire NHS Foundation Trust Hospital (MSNFTH) contributed to radically higher death rates than in comparable hospitals elsewhere in the UK.

Australia’s recent experience with the trials of former Bega gynaecologist Graeme Reeves and Bundaberg surgeon Jayant Patel are likely to see similar proposals mooted here. But is this the best way of ensuring patient safety?

Provisions criminalising wilful or reckless neglect or mistreatment of mentally ill and child patients already exist in the UK. Supporters of recommendations in the Berwick review and Francis enquiry into UK patient safety argue that these sanctions should be extended to cover all patients. This would plug a hole in the existing legal framework, they say, where a gross, but unintentional, error can attract criminal sanctions, but a wilful or reckless act or omission cannot.

The Australian regime differs from the UK. In the most serious cases, practitioners can be charged with criminal offences. More commonly, claims of negligence or misconduct are dealt with by professional disciplinary tribunals, or as civil claim in negligence or trespass.

Our forthcoming research examining cases in the UK and Australia where health professionals have been charged with these offences reveals that the trials are long and complex, with low conviction rates, frequent appeals, and comparatively light penalties.

Furthermore, the penalties fail to distinguish between a defendant who made a decision to act – or not act – in a way that was recklessly or wilfully negligent, and a defendant who wilfully or recklessly failed to make a decision about their course of action – sticking their heads in the sand, rather than facing the circumstances.

This is particularly relevant in the context of patients who have given specific instructions, such as advanced care directives (AD), in anticipation of their future care. A practitioner who is aware of a “do not resuscitate” clause in a patient’s AD, and follows the patient’s wishes, could be exposed to the same criminal sanctions as a practitioner who simply refuses to acknowledge that a patient requires resuscitation, panics, or withholds resuscitation regardless of patient wishes.

Such a law is likely to see practitioners engage in defensive medicine, or behave paternalistically, providing futile treatment in contravention of patient wishes and eroding patient autonomy.

Whistleblowers who report potential harms need greater protections. Image from shutterstock.com

Should health-care providers even be singled out in criminalising this type of conduct? There are many other examples of employees who, if they wilfully or recklessly act or fail to act, can potentially maim or kill many people. Bus drivers, safety inspectors, pilots and engineers are a few that spring to mind.

As the Patel and Reeves cases show, health-care providers who act criminally in the course of providing health care are not above the law. Charges of assault and battery, manslaughter, sexual assault, criminal negligence, and fraud can still be laid.

In the UK, the number of doctors charged with manslaughter has soared since the 1990s. Prosecution generates headlines but doesn’t necessarily improve health. That’s because legal requirements for conviction often can’t be met. It’s also because it fosters defensive medicine that is not in the interests of individual patients or the overall health system. We should be wary about demonising doctors and other health-care workers.

The greatest limitation on these laws in terms of achieving patient safety objectives is their focus on harms – the “hits” – at the expense of the “near misses”. It is these “near misses” which allow health-care facilities to respond to safety issues proactively – ideally before anyone is harmed. Without a harm – a dead or injured patient – there can be no offence.

Criminalisation without adequate support for reporting, complaint resolution, and accountability and transparency creates a culture of fear and cover-up within health care.

A more reasoned approach would be to increase protections for whistleblowers and enhance mandatory reporting of safety breaches. We should ensure that independent statutory authorities are empowered and resourced to conduct own motion enquiries and thorough investigations of complaints, reporting direct to parliament, rather than a minister.

Finally, criminalisation of this type could potentially free employers from liability for the conduct of their employee health-care workers on the basis that the conduct was criminal.

Employers have a responsibility to supervise what goes on in their hospitals. Dysfunctional reporting and quality assurance procedures in a culture focused on financial targets were identified as significant factors in the harm at MSNFTH. Criminalisation of the kind proposed would not have prevented the harm, nor will it bring back those patients who died, or reverse the harms suffered by others.

Australia is yet to experience a scandal on the scale of MSNFTH. To avoid it, a better strategy would be to ensure that our regime emphasises systemic improvement in health-service delivery rather than being driven by moral panics founded on perceptions that every incident has someone who should be punished – preferably with incarceration.

Our legal system already has provisions in place capable of responding to criminal conduct by health-care workers; creating a separate class of offences specifically targeting health-care workers is unlikely to improve patient safety.

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