It was announced last week that a new offence of ‘wilful neglect or mistreatment’ is to be created for NHS hospital staff whose conduct amounts to the deliberate or reckless mistreatment of patients. This offence will be modeled on an existing offence under the Mental Capacity Act which punishes the wilful neglect or ill-treatment of patients lacking capacity. Currently, a medical worker convicted of this offence faces a maximum sentence of five years imprisonment, or an unlimited fine. The sanctions for the proposed new offence are likely to be of a similar severity.
The creation of the offence comes in the wake of the inquiry into the widespread negligence that occurred at Mid Staffordshire hospital. Intended principally to deter healthcare workers from mistreating patients, the new offence has been proposed following review of patient safety. The leader of the review, Professor Don Berwick, emphasized that patient safety must become the top priority and that the measure was needed to target the worst cases of a ‘couldn’t care less’ attitude that led to ‘wilful or reckless neglect or mistreatment’.
Concerns about its impact
Whilst most would agree that patient safety should clearly be a priority, there has been concern that the new criminal sanction could create a ‘climate of fear’ amongst healthcare workers and that individual workers will be penalised for mistakes that are the result of inadequate staffing or simple human error, rather than blameworthy acts of malice.
The BBC reports Dr Andrew Collier, co-chairman of the BMA’s junior doctors’ committee, saying that doctors who failed to meet certain standards needed support and help: ‘They don’t need this new climate of fear. They don’t need to be concerned that they may be sent to jail. What they need to do is learn from their mistakes and develop their practice,’ he told BBC Breakfast.
Further emphasising the natural fallibility of healthcare workers, Dr Maureen Baker, the new chairman of the Royal College of GPs, told the BBC: ‘Doctors, nurses – we are human. Human beings make mistakes…You can’t change the human condition, but you can help support the humans in having systems around them that help keep them safe, caring and compassionate.’
But can’t people already sue?
It is not the case, however, that mistakes in the NHS are currently without penalty. There are various councils and regulators that have the power to initiate disciplinary proceedings against negligent healthcare workers. Further, patients (or patients’ relatives) who believe that an instance of clinical negligence resulted in them (or their relative) suffering some harm can sue the alleged negligent healthcare worker or the hospital.
Given that these possibilities already exist, it can reasonably be asked what the new offence will add to the existing options for holding healthcare workers to account and imposing sanctions on them. Further, is it really the case that the new offence would generate something entirely different for healthcare workers to be fearful of? Is it the case that systemic and ‘honest’ errors currently attract no penalties and that the new offence will change all this for the worse?
In the remainder of this post, I am going to highlight the differences between the current possibility of suing in negligence law and the operation of the new criminal offence of wilful negligence. Teasing out these differences will help us better understand what is new about, or unique to, the new criminal offence in comparison with the current legal options.
So what is new about the new offence?
Civil law versus criminal law
The first set of differences has to do with the inherent differences between the civil and criminal law. Suing a healthcare worker for negligence activates the machinery of the civil law, whereas the new offence is a criminal matter. The basic underlying theory involves the idea that cases of alleged negligence are matters between private individuals whereas the commission of a criminal offence is a matter between the offender and the State. Claims of negligence are seen as disputes between private individuals whereas criminal conviction is seen to be in the interests of the wider public.
One upshot of this is that negligence is only dealt with in the civil courts when a private individual brings a claim before the court. Accusations of criminal conduct, on the other hand, can be brought before the criminal courts by the State – the patient who was allegedly mistreated need not raise the charge herself.
Another upshot is in terms of the consequences of being found liable in negligence law versus being found guilty of a criminal offence. If it is found that a healthcare worker was negligent in civil law then the court will order him to pay damages to the claimant. Civil liability thus results in an enforceable requirement to pay compensation: the dispute is adjudicated; the defendant owes the claimant. In the criminal context, however, a finding of guilt will result in punishment. Rather than a judgement that the defendant owes the claimant, a conviction of the criminal offence of wilful negligence will entail that the offender culpability neglected or mistreated the victim.
A final point to note about the differences between the civil and criminal context for alleged negligence is that the standard of proof is different. In the civil context, the court must prove that the defendant negligently caused the claimant loss on the balance of probabilities. This means that the court need only be convinced that it was more likely than not that the defendant behaved negligently and that the claimant incurred a loss as a result. In the criminal context, however, the court will have to prove beyond reasonable doubt that all the elements of the offence of wilful negligence are present. This, obviously, is a much stricter standard.
Whilst some of these differences are symbolic (e.g. dispute resolution compared with offence against the state) there will be significant practical consequences of the new offence. Unless the mistreatment amounts to a criminal offence already (e.g. assault) a patient who believes he received negligent care currently has to hire a lawyer (possibly at expense) and file a lawsuit in order for the civil court to take notice of his complaint. If the same conduct will fall within the plausible scope of wilful negligence, the aggrieved patient will now (perhaps more simply) have to go to the police. The possibility that a charge of criminal wilful negligence will be easier to raise than a civil claim of clinical negligence will no doubt generate much discussion. It might be thought that preventing vulnerable patients from having to take on the onerous litigation process would be a good thing. But the climate of fear some commentators fear may become all the more likely if criminal proceedings can too easily be initiated.
The mental element of the offence
The other important differences have more to do with the specific nature of the new offence and the elements it involves that negligence in civil law does not. The key difference is that the new offence involves a mental element: it must be wilful. This means that the healthcare worker had to either deliberately or recklessly neglect or mistreat the patient. Reckless neglect or mistreatment will involve the healthcare worker pursuing a course of action while consciously disregarding the fact that the action gives rise to a substantial and unjustifiable risk to the patient, even if the harm risked was not intended. This means that an honest belief that a course of action was in the best interest of the patient may serve as an excuse or even justification, and the defendant may not be found guilty.
In the civil law, however, all that has to be established is that the healthcare worker breached her duty of care (did not behave as a reasonable healthcare worker would) and that this breach of duty caused the patient to incur some loss. In the civil context, then, the mental element is not necessary: one can breach one’s duty simply by not doing what one should, regardless of what one did or did not think about it. It must be pointed out, though, that although this may make it seem that it would be easier to be found negligent in civil law than guilty in criminal law, this may not be the case. Whilst it is true that the mental element makes the finding of wilful negligence more demanding that the finding that a heathcare worker breached her duty of care, civil liability only arises where this breach caused loss. If there was a breach but no loss, then the defendant will not be liable. The new offence of wilful negligence, on the other hand, (if modeled on the existing offence under the Mental Capacity Act) will be a conduct offence – a heathcare worker can be found guilty even if the wilful negligence did not result in any harm.
It seems that much will turn on what is meant by ‘wilful’. The commentators’ concerns (quoted above) that human mistakes will be unfairly punished may be misplaced: if the commentators have in mind honest errors and forgivable fallibility – the sorts of errors that healthcare workers can helpfully learn from – these are unlikely to involve intention or recklessness.
To end, I will briefly outline two cases of wilful neglect brought under the Mental Capacity Act, which might give us some clues as to how the courts will understand ‘wilful’ in the context of the new offence.
R. v Patel (Parulben) [2013] EWCA Crim 965
In this case the medical practitioner in question failed to perform CPR on a patient because she panicked. The court had to decide whether the neglect was wilful. The Court of Appeal decided that the offence of wilful neglect was made out even if the failure to act was the result of panic. Neglect was wilful if a nurse or medical practitioner knew that it was necessary to administer a piece of treatment but deliberately decided not to do so because she could not face it. The judge did add that if the practitioner had been acting at a time of stress that would be a matter which the judge could take into account in sentencing.
R. v Nursing (Ligaya) [2012] EWCA Crim 2521
In this case the carer in question was charged with wilful neglect based on alleged inattention to the personal hygiene of her patient, failing to maintain her rooms in a clean condition or replace dirty bed linen. She also was alleged to have failed to administer medication correctly and at the right time, or to provide food and a balanced diet or to make sure that her patient’s personal habits did not create problems with food hygiene.
The carer argued that the patient would sometimes refuse to accept help and that, although the patient lacked capacity generally, the fact that she plausibly had the capacity to make decisions about basic wants meant that disregarding them would be to interfere with her freedom of choice.
The Court of Appeal agreed and said that actions or omissions that reflected or were believed to reflect the protected autonomy of the individual needing care did not constitute wilful neglect.
As I have demonstrated, there are differences between the new offence and the existing legal responses to negligent care. Some of these differences could make it easier for cases to be brought to the attention of the law, whilst other differences make it harder for guilt (compared with liability) to be found. Further differences determine how the neglect is conceptualized and what the consequences of guilt (compared with liability) will be for the defendant.
The actual effects of the new offence will depend very much on whether (as has been suggested) it really is reserved for the most extreme cases of mistreatment, and on how the courts interpret ‘wilful’. In turn, these will play a large part in determining whether healthcare workers become persistently fearful of prosecution, and whether this fear is greater than that which is generated by the existing prospect of civil lawsuits.