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Medical Law

Birth choices: mothers, medics and social services

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23 July, 2014
Harry Perrin, Human Rights Law, Medical Law
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Pregnant_woman_silhouette

 

– Harry Perrin (Solicitor)

Birth choices: mothers, medics and social services Harry Perrin (Solicitor) Standing up for yourself is not easy when you are lying on your back, and even the most robust people find it at least a little uncomfortable asserting their position to perceived authority figures. Women in labour face just this challenge in respect of the treatment they receive (or not) and the procedures to which they are subjected during birth; likewise for antenatal and post-natal treatment.

Know this: your consent must always be sought before any medical procedure is performed on you (Article 8 of the European Convention on Human Rights (ECHR) – right to private life, which the courts have interpreted as encompassing the right to physical integrity and autonomy).

And know this: the court has ruled that you have the right to refuse treatment even if doctors regard your decision as ill-advised (Re MB, 1997), even if it might lead to your death, and even if it might lead to death or serious harm to you or your baby (St George’s Healthcare Trust v S, 1997).

This might seem extreme at first glance but it is an important safeguard. Healthcare professionals on the ground might think one course of action is the right thing to do; the mother might think differently. This could apply to antenatal care (for example, attendance at check-ups and scans); during labour (consenting to a lumbar puncture or having an unassisted birth) or post-natal care (such as inoculations or other treatment). A court could try to determine the issue but, when the mother is in labour, there would obviously be no time. Just to concede to the doctor as the ‘expert’ would violate Article 8. The only safe position is for the mother to have the final say; in law at least, in theory. In practice, lines become blurred as these rights must operate alongside the statutory regime of safeguarding.

Healthcare professionals should inform social services if they reasonably believe that a child will be at risk of significant harm once it is born (Children Act 1989), but when this duty is used as a ‘threat’, to try to coerce the mother into allowing a particular treatment or procedure, it becomes less about statutory safeguarding and more about the undermining of legal rights. It is unclear whether the practice of doctors ‘threatening’ mothers and families with a social services referral before, during or after labour is widespread; it would be difficult to collect the data. My evidence is all anecdotal, but Birthrights, an organisation seeking to protect human rights in childbirth (on whose website I have gratefully relied for the law), clearly believes it is a danger sufficient to warrant specific advice to mothers.

The healthcare professional in this context may seek to rely on the mother’s refusal to undergo this or that procedure as evidence that she would be unable to act in her child’s interests once born. It is perhaps too flippant a retort to say that the mother’s choices were related to the birth process and thus would not be relevant once the child was born, but this does not put the doctor in the right. The healthcare professional who makes the ‘threat’ of a referral would presumably be seeking to change the mother’s mind, to make her make the ‘right’ decision. The threat, however, actually has the opposite effect: it makes the mother’s decision less reliable, less ‘right’. Consent is not freely given if it is influenced by a threat, and a doctor who carries out a procedure on a person where he/she knows (or should know) that consent has not been given freely is committing a battery and potentially a violation of Article 8 ECHR.

Moreover, it is by no means the case that a mother’s choice not to ‘co-operate’ with medical professionals will or should automatically warrant a referral to social services. Such a referral is only appropriate where the choice indicates a risk of significant harm to the child once born.

During labour, it may not be particularly easy for the mother or her birth partner to remember Article 8 ECHR, Re MB, St George’s v S and the Children Act 1989, less still to cite them in a coherent and compelling way; and this would depend on the healthcare professionals’ willingness to listen. The most powerful tool a mother or birth partner can have may simply be the confidence which comes from knowing their rights and knowing the procedure which would actually ensue if the threat of a referral to social services was carried out. The power of such threats lies in the unknown; in the imagination of the fearful mother who thinks the involvement of social services will equate to her child being taken away and placed into care. It is not so.

Firstly, the medical professionals making the referral should obtain the consent of the parents to do so unless seeking consent will place the child at risk. Within 10 days of the referral, an Initial Assessment should be carried out to gauge whether the child is at risk of significant harm: stage one in terms of social services’ continued involvement, should matters even make it this far. Should a finding of risk of significant harm be made at this assessment, the next stage would typically be an enquiry under section 47 of the Children Act. The enquiry is based on a ‘Core Assessment’, an information-gathering exercise to which relevant professionals contribute along with, crucially, parents and family members. It is the second stage in terms of social services’ involvement. The next step is a Child Protection Conference at which the information is analysed and any proposed actions set out in respect of keeping the child safe in the future: stage three. Bear this thorough process in mind when you are weighing up the likelihood of a referral leading to care proceedings because you did not want an ultrasound, had an unassisted birth, refused a lumbar puncture, or turned down inoculations. Will exercising your legal rights in ways such as these – in and of itself – really clear these hurdles and convince social services to apply to have your child taken into care?

Ultimately, only a court can make the decision to remove your child or take away your parental responsibility. A social worker cannot, and a doctor certainly cannot. There is a principle in family law known as the ‘no order principle’, in which the court must be convinced that making an order in respect of the child is better for him/her than making no order at all. Ask yourself the question again: will exercising your legal rights before, during or after labour really – in and of itself – convince a judge that making an order after the event would be better for your child than making absolutely no order at all?

It is filled with jargon and possibly scary, but it is worth knowing the process which would follow if a threat to make a social services referral were carried out. It indicates that some such threats will be empty; and that those that are not will not easily lead to care proceedings (at least not without other evidence which might indicate that you cannot care properly for your child). It reveals the social-services-equals-child-in-care equation which causes such fear, and from which such threats gain their power, as the misapprehension it is.

Fear during labour comes from lack of knowledge. This is as true for the physiological and spiritual sides of birth as it is for the legal. Empowerment and confidence come not from citing court cases or European legislation, but from the mother and her birth partner knowing their rights. Labour is no time for lying down.

Harry Perrin is a lawyer who helps people, organisations and businesses understand their rights, make informed choices, and achieve their goals through the best possible means.

Any views expressed are those of the author and should not be taken to represent those of his employer.

Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland

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19 May, 2014
Dr Sylvia de Mars, Human Rights Law, Medical Law
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nhs

 

– Dr Sylvia de Mars (Newcastle University)

This post was first published on Human Rights in Ireland

Given that my  research considers the access rights of EU nationals to the English NHS, last week’s England and Wales High Court decision in R (on the application of A & Anor) v Secretary of State for Health didn’t come as much of a surprise, but remains regrettable. There are two dimensions to this case, which dealt with the question of whether or not Northern Ireland residents can obtain abortions with the English NHS free of charge.  The first dimension is a public law one, looking primarily at the organisation and funding of the healthcare services in the United Kingdom, and the second is a human rights one.

In rejecting the claim, the High Court applied public law as it currently stands in England, and though the judgment does not state this explicitly, one would assume that it has done so not least of all because the issue of access to the English NHS has been an increasingly politically sensitive one in recent years.  What few restrictions exist in English law to entitlement to access the NHS, the English courts have in this case attempted to uphold, and they have done so by emphasising that healthcare is a devolved matter:

Health Policy within Northern Ireland, being neither a ‘reserved’ nor an ‘excepted’ matter, is a ‘transferred matter’ pursuant to s 4 of the Northern Ireland Act 1998 and is thus within the legislative competence of the Northern Ireland Assembly. It is accordingly, in the context of the service provision in issue in the present proceedings, for the relevant authorities in Northern Ireland to decide to what extent abortion services falling within the law applicable to Northern Ireland should be provided by the health service in Northern Ireland consistent with the duties imposed upon them under the applicable legislation.

Provisions on entitlement to treatment by the NHS in England are set out in the NHS Act 2006. Under the NHS Act 2006, anyone who is “ordinarily resident” in Great Britain is entitled to use the NHS for free: section 1(3) states that “free” service is obligatory for all those entitled to use it, unless otherwise noted.  An exception is contained in section 175, which entitles the English authorities to introduce additional legislation to recover charges from “overseas visitors”.

The NHS Act 2006 does not define “ordinary residence”.  In order to make the concept workable in practice, Department of Healthguidance on charging overseas visitors directs NHS employees to apply R v Barnet LBC Ex. p Shah when deciding if a visitor is to be charged.  In Shah, Lord Scarman ruled that anyone adopting an ‘abode’ voluntarily and for settled purposes “as part of the regular order of his life”, regardless of how long, would pass an “ordinary residence” test unless said person’s stay in the UK was unlawful.  This ruling was made in the context of the Education Acts, but — as the Department of Health Guidance states — “is generally recognized to have a wider application.”

Key here is where the NHS Act 2006 demands the residence to be.  Unlike the Education Acts, for example, where “ordinary residence” was demanded in the United Kingdom, the NHS Act 2006 demands “ordinary residence” in Great Britain.  It thus explicitly excludes Northern Ireland.  The general reasoning behind an “ordinary residence” requirement in order to access social services is that visitors to the UK should not be entitled to access what are “free at the point of use” services at the expense of the UK taxpayer.  However, as noted, the exception is — in most areas of law — to those not resident in the United Kingdom.  This was raised by one of the claimant’s mothers in A & Anor, who said:

Having now had the opportunity of taking legal advice in England, I understand that publicly funded health care services are intended to be free at the point of use for all UK residents. I feel my daughter has been treated most unfairly, because when she was required treatment in another part of the United Kingdom, she did not get it, and was offered no assistance by the state health care system. If my daughter had had some other health condition, which necessitated her travelling to another part of the UK for treatment I believe that no obstacles would been put in her way and that every effort would have been made to ensure that she was treated in an appropriate NHS facility and had assistance with travel costs. [emphasis added]

As King J points out, this is a misunderstanding of the relevant legislation.  King J, however, does not stress that Northern Ireland is singled out as an exception in primary legislation already; instead, he focuses on the fact that abortion is a “secondary care service”, and these are only provided for local residents, by what used to be Primary Care Trusts (PCTs) and what are now Clinical Commissioning Groups (CCGs).  In short, prior to 2013, funding — as directed from the UK Parliament to the Department of Health, and then distributed to PCTs — for secondary care services such as abortion services was again proportionate to “local” populations in areas, and the English NHS (through local PCTs) was entitled to charge for these services unless they are provided in an emergency (as emergency treatment, regardless of where in England it takes place, is always free) or unless the service is provided for what is termed a “qualifying patient”, as in a patient with serious mental illness as per s130C of the Mental Health Act 1983.  Consequently, the law directed the English NHS to charge anyone who is not locally resident for secondary care services, including abortion access, unless a specific exception applied to them.

The law applicable to CCGs is slightly different, as is summarized well in the judgment:

[T]he CCGs are in a slightly different position than were PCTs vis a vis the provision of services to persons ordinarily resident in Northern Ireland. Some services must be provided based on the presence in the CCGs’ area; no such duty applies to other services vis a vis persons ordinarily resident in Northern Ireland (and Scotland and Wales). But there is discretion to commission services, including abortion services, for the benefit of all potential patients, including patients ordinarily resident in Northern Ireland. In this way, decision-making as to the appropriate provision of certain services has been devolved from the Secretary of State to the level of CCG.

As King J ultimately finds in A & Anon, the current position of the NHS Act 2006 is that CCGs can provide abortion services (for free) to Northern Ireland residents if it wishes to, but there remains no obligation to provide these services free of charge.  Rather than accept that, as abortion is (outside very restricted circumstances) illegal in Northern Ireland, the English NHS has a duty to provide abortion services to those “ordinarily resident” in other parts of the United Kingdom, his ruling focuses very explicitly on the fact that the Health Secretary’s general duty is to the people of England, and that the English NHS cannot be held responsible for the fact that the devolved authorities in Northern Ireland impose much more severe restrictions upon the availability of legal abortions in Northern Ireland.

From a functional perspective, there is little to fault in this conclusion.  Health care is not only a devolved matter, but it has now even withinEngland, become a “local” matter.  Financially, the centralized mechanism whereby health services across the United Kingdom are funded is only sustainable if block grants reach CCGs (or the prior PCTs) on the basis of how many residents are likely to need services.  This stands separate from the Northern Ireland position on abortion, and consequently the predictable stream women, resident in Northern Ireland, seeking abortions in England; as a matter of public law, the local English NHS simply holds no responsibility to provide any secondary care that is “free at the point of use” for anyone not ordinarily resident in their particular catchment area, unless very specific exceptions apply.

Acceptable as this functional, “respectful of devolution” reasoning is likely to be to those concerned about the English NHS’s budgetary crisis, however, it ultimately hides behind devolution to ignore the fact that a substantial number of women who have UK citizenship cannot benefit from human rights law applicable within the United Kingdom as a whole.  As the Abortion Act 1967 does not apply to Northern Ireland, the claimant attempted to argue that denial of free access to the NHS to obtain this abortion violated Article 14 (on non-discrimination) of the European Convention of Human Rights, by way of interference with her Article 8 (right to private life) right:

The claimant would say that she is treated differently from all other citizens of the United Kingdom as regards access to ‘state funded abortions’ because unlike citizens ordinarily resident in England, Scotland or Wales, she has no option of returning to her place of ‘usual residence’ in order to access a state funded abortion…

King J was very quick to dismiss this argument, and he does so in very formalistic terms.  He ruled that there was no such thing as a right to a “state funded abortion”; rather, that Article 8 and 14 read together require residents of Northern Ireland to be able to access abortions in England as any other UK citizen is.  This duty, he concluded, the Secretary of State fulfilled, as the claimant did manage to obtain an abortion in England, and her right to do so was not legally impeded.  What services the NHS provides for free is, in short, not affected by the ECHR; this is a matter of contracting state policy, and not specific to abortion as such.  While technically not untrue, this position does skirt the reality that all healthcare services in all parts of the UK are provided “for free” for those eligible to use them, meaning that the right to obtain such a service privately is at best a half-right — it is not one that anyone outside of Northern Ireland would ever need to make use of, but this is ignored by the High Court.  Similarly ignored is that not all Northern Ireland residents would be able to afford a private abortion,which flies in the face of the philosophy underpinning the National Health Service: the NHS is there to provide treatment on the basis of need, regardless of ability to pay for it.

Additionally, and obiter, King J suggests that there is no “discrimination” in this case at all, in the sense that the residence requirement for secondary care services stems from the objective reasonable justification  of the “division of responsibility for health services within the four jurisdictions of the United Kingdom.”  In other words: this was not a personal ruling, it was a pragmatic one given that healthcare is a devolved matter, and the only way around it would be for the claimant to contest the Northern Ireland’s law on abortion under the ECHR … but this was not what the claimant did.

One way to view the final point is as a nudge for the claimant to challenge the Northern Ireland law on exactly those grounds; it reads almost as an expression of regret, whereby King J indicates he cannot simply ignore the public law in order to rule on the human rights issues.  However, that will be of little consolation for those interested in seeing women’s rights protected in the United Kingdom as a matter ofnational law, rather than international law — and indeed, the latter appears to be what the High Court is very unwilling to do.  Given that the post-2013 restructuring of the NHS has granted CCGs the power to grant access to free abortions as a matter of discretion, the door to actually use human rights to support the ability of women from Northern Ireland to obtain abortions in the United Kingdom where this is legally permissible as a state-funded service appears to have been wide open in this case; but, while highlighted, this was not taken advantage of, nor was the Secretary of State instructed to take this step by simply legislating so that CCGs made services not available in onepart of the United Kingdom available to all those resident in that part in other parts of the United Kingdom.  Ultimately, the four parts here do not make a whole, and from a human rights perspective, this is at best regrettable.

As it stands, the grounds for further action are clearly there — but so far, the High Court remains unwilling to rule in a way that clearly informs the Northern Ireland Assembly that its attitude towards abortion is unsustainable in a United Kingdom that respects the human rights of its female citizens.

Medical Malpractice, NHS Liability and Proving Causation

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8 January, 2014
Medical Law, Zia Akhtar
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– Zia Akhtar (Grays Inn, London, UK) [email protected]

Introduction

The government is to propose a new law in 2014 that will criminalise breach of the duty of care by those medical staff who are grossly negligent or who abuse their patients.  There will be a sanction of a five year jail term when there is a finding of culpable negligence that results in serious injury or death.

The offence would transfer liability to hospitals or those involved in providing aftercare who are ‘guilty of willful or reckless neglect or mistreatment’ if they perform their task negligently. The intention of the statute would be to punish those who fall well below the standard of care expected of medical professionals.  The scale of penalties would reflect the regime established in the Mental Capacity Act 2005, which allows for fines, imprisonment for a maximum of five years, or both.

This upcoming legislation, announced in December 2013, has followed the report into the deaths that occurred in the Mid Staffordshire hospital between the period of 2005-09. There were an estimated 1,200 people who died due to poor care of patients who were left in the wards without any supervision. It resulted in two inquiries chaired by Robert Francis QC into the cause of the deaths at the hospital.

The Francis report disclosed that the hospital hierarchy was more concerned with meeting their targets of resource allocation than the basic levels of primary care of the patients. The Report which was published in February 2013 made 290 recommendations for improvements in NHS healthcare but not one medical professional faced prosecution as a result of findings of what went wrong at the Mid Staffordshire Hospital.

In a review of criminal investigations into medical error conducted by a University of Manchester Law department team, it was shown that it is difficult to convict doctors and nurses for deliberately failing their patients. Of the 75 Crown Prosecution Service files they studied, just 5% resulted in prosecutions of those medical staff who were reported for criminal negligence.

These findings were set out in Professor Margaret Brazier’s public lecture  ‘My Doctor is a Criminal’ on 23 April 2013  which expressed the view that ‘bad’ doctoring should be a crime.  She stated that the reasons why charges are not being brought for criminal negligence is the requirement that the case is the causation and the burden of proof. This is dependent on the omission or the commission of an act that may have made a substantial contribution to a patient’s death.

There are mitigating circumstances, such as the patients’ previous poor health, infirmity or old age, which can present a difficulty for the prosecution, and were a  factor in the indictments were being withheld in the Mid Staffordshire deaths. This was despite there being evidence of deliberate or reckless infliction of unnecessary suffering on the patients. It did not lead to a single negligence based action but the announcement of the Mid Staffordshire NHS hospital trust that served 275,000 people in the region to be closed at the end of 2013.

Need for extending the breach of duty

There are increasing concerns being expressed in the UK of hospitals providing sub-standard care and there has been an incremental increase in the level of claims to the NHS from patients. The NHS litigation authority official figures for the year 2012-13 showed a 20% rise in the number of patients seeking compensation from the previous year.

The level of damages sought from the NHS was approximately 19 billion from patients, nearly 1/5 of its budget based on claims of negligence. There was a sum of £1bn spent on settlements last year, but around one quarter of costs were absorbed by legal fees, mainly in payments to claimants’ lawyers under a “no-win, no fee” system which means legal firms can charge up to £900 an hour for their services if claims are successful.

The impact of the below standard care in the UK is that elderly patients face a higher risk of death when placed in general wards instead of critical care wards after unplanned surgery. The European Surgical Outcomes Study (EuSOS) Mortality after Surgery in Europe: A 7 day cohort 2012 (published in the Lancet’s  September 2012, vol.380, no. 9847, pp.1059 – 1065), found that hospital inpatients had a 3.6% chance of dying, whilst in Germany the figure was a very low at 2.5%. The patients who died were in the main elderly, and the findings also stated that there were insufficient resources being invested in the facilities at the hospital to care for the critically ill which increased the mortality rates.

The study coordinator Dr Rupert Pearse from the London School of Medicine at the Queen Mary College, University of London states in the report:

‘The substantial variations in mortality between countries highlight the urgent need for national and international strategies to improve care for this group of patients. Nearly three-quarters of patients who died were never admitted to intensive care. Failure to allocate critical care resources to patients at greatest risk of death is a serious public health concern for patients undergoing surgery in Europe.’

There will have to be substantial improvements in the infrastructure and quality of medical treatment.  This can be inferred from the Channel 4 news special report on September 2013 prepared by emeritus Professor Barry Jarman of Imperial College whose input went into the Bristol Royal Infirmary Inquiry and Mid Staffordshire hospital scandals. These are about the level of care and mortality rates in UK hospitals. The study demonstrates that death rates in UK hospitals were considerably higher than in US hospitals and among the worst anywhere in Europe.

The average HSMR for England was 122.4, making it the highest of the seven countries examined. The average HSMR for the US was 77.4. The HSMRs in the NHS were 58% higher than the most favourable country, the US, and in 2012 a patient in the average NHS hospital was still 45% more likely to die in hospital than if they had been admitted to a US hospital.  The figures also confirm that patients in hospitals aged over 65 fared worse and were five times more likely to die of pneumonia in hospital in England and twice as likely to die from a blood infection (septicaemia) than if they were admitted to a hospital in the US.

Establishing Causation in the injury   

The reason for the high threshold in proving any wrong doing against medical health professionals that establish their liability is the casual link between the act and the resulting death or injury.  There are three elements in an action for negligence which need to be satisfied claim which are: if there was a duty of care, causation and proof of actual damage. The majority of claims in negligence cases fail because of the lack of sufficient causation between the injury or death and the negligent conduct of the staff.

In the medical profession the decision of what is acceptable care and what is substandard care is measured by reference to whether a responsible body of medical opinion considers a particular instance of care was substandard. The subsequent advances in medicine have to be ignored. If the hospital trust finds a reputable medical expert who states that the care was acceptable then the burden of proof on the claimant is very onerous to discharge in order to succeed in a civil claim. The breach of duty of care has to be of such degree that no reasonably competent medical expert in the same discipline would have acted in that way.

The higher degree of immunity extended to the medical profession was originally intended so that a hospital authority could not be liable for negligence in matters involving the complex exercise of professional skills.  Under English law there is a legal precedent known as the Bolam principle where if the hospital trust can provide a witness who is a reputable medical expert, who states that the care was acceptable, then the claim fails unless it could be shown that the expert acting was wrong.

In Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, Lord McNair in his judgment stated as follows:

‘A medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.’ pp 586-587

This test has been moderated by the House of Lords’ judgment in Bolitho v City & Hackney Health Authority [1997] 4 ER771 whereby the court will be the arbiter of fact, determining whether the injury had been caused by the defendant’s negligence and not the medical practitioner. However, their Lordships emphasised that they would hold a procedure that was in accordance with a sound body of specialist opinion to be negligent only in “a rare case”.

The question of a hospital authority’s negligence is one of primary liability for breach of its own duty to the patient.  The court determines the actions of the individual who is a servant of the hospital on the basis of vicarious liability but the claimant of the burden of showing the procedural and legal causation. This is the most arduous task where the patient or their representatives fail where it is not prima facie evident that there had been negligence by the medical practitioner who was carrying out a duty imposed by law.

Lack of a Duty of Candour

In English medical law there is no legal duty of candour and the courts have rejected any imposition of a duty of care to the parents and the matter. This matter has been the subject of appeal to the European Court of Human Rights under Article 2, granting a Right to Life.  The parents of the patient who had died applied for the hospital to disclose to them the records of his illness.

There was an admissibility hearing before the Strasbourg Court  in Powell v UK Application (1999)  no 45305/99  where the ECHR held that the ‘doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records’.

In the aftermath of the decision, the General Medical Council has issued guidelines to medical practitioners to have a more informed relationship between the patient and the doctor.  However, it stops short of the legal obligation of disclosure. The UK Government refused the attempts to introduce a statutory Duty of Candour in the Health & Social Care Act 2012, which has brought in the role of the Quality Care Commission and developed Monitor, the body that currently regulates the NHS. It has not established a legal duty of candor but only an ethical duty that exists between the doctor and the patient that is privileged.

There is consensus in the medical profession that there is no relationship between the tort system and patient safety that requires a duty of candour. J Miola, in ‘The tort of negligence and patient safety’ (pp 41–52 in J Tingle and P Bark, Patient Safety, Law Policy and Practice (Abingdon, Routledge, 2011)) states that ‘the law of tort is  not designed for patient safety, and is only a retrospective remedy to compensate those who bring legal actions.  The deterring of bad practice is secondary to the main purpose of compensation’.

The main justification for not imposing this duty of candour as a legal requirement is that the compensation is that the hospital trust does not want to be held accountable for failure of the procedures at the hospital which are an administrative matter. The law of tort offers only limited protection for patient autonomy despite seeming to punish the negligent failure to disclose required information such as prior to surgical operations.

Statutory offence and causation element 

The government’s proposal of a new offence of ‘willful or reckless neglect or mistreatment’ will come on to the statute books in the foreseeable future. The difficulty of proving a causal link to the injury or death of the patient and the breach of legal duty of the doctors and medical professionals is that the principle of corrective justice serves to pay damages to the victim but it does not address the issue of the unsafe environments in which such substandard medical cultures originate.

However, prior to the new criminal offence, which the government has stated it will introduce in the near future, the criminal negligence claims for breaches of patient safety have proceeded on the basis of the failure of a combination of individual and system factors. The offence that most often comes up for possible indictment against individuals is gross negligence manslaughter but the difficulty of proving causation is also very onerous in this case.

The leading cases in establishing individual culpability in defining gross negligence are R v Adomako [1995] 1 AC 171 and R v Misra and Srivastava [2004] EWCA Crim 2375. This is an abstract concept which is incapable of objective measurement and potentially unfair to those indicted given the difficulty of ensuring an objective and consistent interpretation of a common law definition.  The challenge of establishing causation is the main factor, as also appears to be in the case of the statutory offence of corporate manslaughter.

The issue that comes to the fore is whether there is a correlation between the criminal law and patient safety, and does it prevent the unsafe and bad practices of the legal profession. Oliver Quick states in ‘Patient safety and the problem and potential of law’ (Journal of Professional Negligence, Vol. 28 No. 2, 2012 pp 79-99), ‘we might speculate that criminal law is likely to be unhelpful in terms of further fuelling a culture of secrecy and shame about errors. Whilst we lack direct evidence, manslaughter prosecutions are likely to be harmful rather than helpful to safe healthcare’.

The reason for there to be few criminal negligence prosecutions is because of the causation requirement.  The problem that is encountered in bringing charges is that it may encourage the culture of secrecy and will not be able to assist candour. It will be imprudent of an organisation to implicate other members in the crime alleged to have been committed by an individual or some members of the medical trust.  Fatal medical mistakes that may involve the criminal justice system in the form of an indictment for ‘willful or reckless neglect or mistreatment’ may be a way forward but the charges will have to deter and to penalise criminal negligence.