Chris Cox on “criminalising” health care practice

Chris CoxA team of medical ethicists is calling for a new criminal offence of wilful neglect in the UK.

The call, in the Journal of Medical Ethics, follows scandals over care such as that at Mid Staffordshire Hospital.

Creating a new offence of wilful neglect will, predict the authors, “boost the accountability of health care professionals, act as a deterrent against patient neglect, and remedy the failings of clinical oversight and regulation.”

But such a proposal is misplaced. It implies a superficial evaluation of human motivation among doctors, nurses, and other health care practitioners, and a naïve faith in the efficacy of the law.

Already health professionals work under threats of criminal proceedings. These include section 127 Mental Health Act 1983 and section 44 of the Mental Capacity Act, in relation to the most vulnerable patients. There is also the general criminal law on offences against the person, not to mention clinical negligence claims (for careless treatment); professional regulatory sanctions, including cautions, supervised practice and striking off from clinical practice for those guilty of misconduct or incompetence; and a range of disciplinary remedies, including dismissal, available to organisations under UK employment law. If the authors think that these measures aren’t enough, and I suspect that they ought to talk to those health professionals that have had experience of, even successfully defending, any of these proceedings, then it would seem wishful thinking to imagine that the new offence will be a panacea. 

Further adding to a climate of fear and retribution is hardly conducive to the best use of human resources in health care settings.

Creating new criminal offences aimed at individuals isn’t going to address the failings unearthed by recent investigations into poor standards of patient care in some of our hospitals, shocking though those findings have often been.

What is required are effective leadership and management of organisations delivering health care; transparent and open cultures where concerns can be raised safely by staff; a willingness to speak up when things are going wrong; more effective enforcement by commissioning, supervisory and regulatory agencies; and a renewed focus on quality measures and patient safety.

The further “criminalisation” of health care practice is certainly not the answer. 

Chris Cox is Director of Legal Services, Royal College of Nursing.

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