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A new criminal offence for doctors

The government is introducing a new criminal offence for healthcare workers who wilfully neglect or ill-treat patients. The new offence may seem uncontentious but, in practice, it could have significant unintended consequences that could negatively impact on the professional lives of all healthcare workers, including doctors.

The government is introducing a new criminal offence for healthcare workers who wilfully neglect or ill-treat patients. The new offence may seem uncontentious but, in practice, it could have significant unintended consequences that could negatively impact on the professional lives of all healthcare workers, including doctors.

The proposals were revealed by the Department of Health in February and have now been formalised as amendments to the Criminal Justice and Courts Bill, which is currently before parliament. Since then MPS has been lobbying government and parliamentarians to ensure the law is clear and does not unreasonably impact on the everyday decisions of members.

The legislation will:

  • Make it an offence for healthcare workers to “ill-treat or to wilfully neglect” someone in their care
  • Create an offence for the organisations that employ healthcare workers that ill-treat or neglect someone if the organisations are not managed in such a way that could have prevented it, or made it less likely to have occurred
  • Create penalties for healthcare workers of up to five years in prison and a fine.

Unintended consequences

It is right that where a healthcare professional’s behaviour is unacceptable they face tough sanctions for their actions but we believe the current regulatory, disciplinary and criminal framework is already effective at censuring unprofessional behaviour, when properly applied.

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.

we believe the current regulatory, disciplinary and criminal framework is already effective at censuring unprofessional behaviour, when properly applied

The legislation should be amended so the offence clearly deals with only the most serious incidents and does not spread fear about the police investigating reasonable care decisions.

Dr Nick Clements, Casebook editor-in-chief, said: “This criminal sanction could have a significant impact on the professional lives of doctors in ways that have not been adequately addressed by the government and need further consideration.

Next steps

MPS is calling on the government not to undermine professionalism or create a culture of fear in the healthcare profession. We want the government to provide more clarity as to how the offence will apply to doctors’ actions and limit the impact on reasonable everyday decision-making.

In July we held a very well-attended breakfast seminar in London, with attendees from across the health sector representing doctors, nurses and the organisations that employ them. There was broad consensus about the potential risks created by the law. We have already lobbied parliamentarians to put down amendments and are now beginning work with other key stakeholders to continue our efforts.
We want the government to provide more clarity as to how the offence will apply to doctors’ actions
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4 comments
  • By Sebastian Miekina on 01 September 2016 11:02 the onus to get to know and understand with a current legislation relevant to medical practice is on the side of doctors who are not children and having relevant qualifications are certified that are not able to panic or be afraid at any situation that relates to their work.
  • By Dr JM Sandor on 21 December 2015 09:16

    Is this law effective now??

    it means that choices given by a budget to respect will be illegal and submit to tough sanctions: for instance a Cardiologist specialist refusing a treatment if the patient smoke-for budget reason- and if the patient died as a consequence, that Doctor may go to jail! Personnaly I agree to that: not to treat persons indirectly for budgets reasons is deaply against our Hippocrates Oath! And that problem in UK is crucial.. 

  • By Chris G on 07 May 2015 03:06

    Some excellent and understandable comments above..... However why does the poster believe that he and his colleagues have a greater right to avoid scrutiny in his profession than do I?

    My professional existence, for example, is mandated by parliament. Even my job and responsibilities are described in law and the requirement to be so qualified is enforced by an act of parliament.

    Almost any transgression of what is required in a multitude of criminal, motoring, contract, financial, banking, property and health and safety laws is immediately open to a full public enquiry. To just lose ones good name is grounds. (A founded accusation from almost any source!!!!). 

    Imprisonment, fines, disbarment, etc. are all sanctions for infringement....... What is the job? 

    Transport Manager........ Yes I know ho ho how can he compare that with what I do?

    The people that I oversee could kill an entire bus queue for a moments lapse in concentration or because of my lack of constant oversight regarding them, their vehicles or their loads. You would not believe what goods and materials travels by road. 

    Bear in mind that a fully logo'ed articulated truck in a serious accident is not likely to be easy to hide. Nor will anyone likely close ranks to protect a Transport Professional. 

    Even failing to properly administrate and record data could lead to the sanctions above...... Accident, Injury, Fatality or not.

    What makes medical professionals, that can generally only kill or injure, (by accident one would hope), one person at a time, deserving of any exemption in regard to what are often obvious failings or poor practices?

    You see I can also use my professional judgement in certain circumstances. That judgement is subject to constant scrutiny and if found lacking will be tested against a multitude of criminal laws among with all of the other likelihoods.

    I have every respect for the medical profession. My mother was a nurse. I have had cause to use doctors. But I, like most road users, spend far more time in the company of heavy trucks and other lighter transport vehicles. 

    Why should what I do be subject to greater external scrutiny and legal sanction than medics? 

    You have my respect. CG

     
  • By Hans M Dethmer on 10 February 2015 11:36

    I provide out of hour care as a GP, covering 720.000 people. Usually 5 clinicians show up for a shift, but there are occasions where you find yourself 'covering' 360.000 or 720.000 patients. This can be due to late cancellations of colleagues through sickness. If, in that situation, you have to provide triage, clinic cover and visits, you will inevitably have to make choices. The fact that there is triage means that demand outstrips supply. It IS like battlefield medicine. Now, this neglect is not wilful, but perhaps by arguing the validity of the choice that the doctor makes in prioritization; a case might arise of wilful neglect. If I council one woman with a personality disorder for an hour, 6 patients with treatable pneumonia will die. 

    Anyway. if things go wrong we need a scapegoat. That is human nature. 

    I have some reflections on the word wilful, which means different things in different languages. In English it has a stubborn connotation. In German it is more rational. 'Ueberlegt'.

    It does however require a very rigorous application of triage. The scarcity of resources and medically trained people in the provision of care in the NHS, requires an adjustment from minute to minute. The sad fact is that a lot of time will be spent now on documenting the scene of the drama, instead of treating the patient.

    A system that has shifted from trust to mistrust after the tragedy of Dr H. Shipman. Hopefully the pendulum will stop swinging, but perhaps it won't.  

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