We do not think that additional criminal sanctions will act as an additional deterrent to poor practice. They may, however, make doctors more fearful of the way their conduct may be later criticised, less open and willing to admit genuine errors to either patients or management and therefore make healthcare less responsive and accountable to patients. This would be in direct conflict with the new legal ‘duty of candour’ the government has introduced on organisations, and thus its employees, to be open with patients about mistakes.
Many in the healthcare community are rightly concerned about what these proposals might mean in practice. As the proposals currently stand, there is a risk that almost any decision – whether it involves the allocation of resources, triaging patients or deciding on a course of treatment – could potentially be investigated for wilful neglect. The government is relying on prosecutors exercising their discretion not to investigate reasonable clinical judgements but this will leave doctors uncertain and fearful about whether their actions could be later deemed criminal.