Criminal responsibility for medical injury: A helpful or harmful mechanism for patient safety?

This special issue of Medical Law International stems from an interdisciplinary workshop which took place in November 2019, titled ‘Criminal responsibility for medical error – a helpful or harmful mechanism for delivering patient safety’. The event was funded by the Irish Research Council’s New Foundations Scheme, and held at the School of Law, University College Cork, to address growing concern around the use of the criminal law to regulate healthcare practices and to consider the implications, if any, for patient safety. The papers included in this special issue are revised versions of selected papers presented at this workshop. As editor of this issue, I am grateful to all those who participated in the workshop and to the Irish Research Council, for making this knowledge exchange possible. I would also like to sincerely thank the anonymous reviewers of the papers included in this special issue.

This special issue, Criminal responsibility for medical injury: a helpful or harmful mechanism for patient safety? seeks to investigate some of the core challenges posed by the increasing interactions of the criminal law with the practice of medicine. The rise in criminal investigations and prosecutions of medical practitioners arguably reflects changing societal attitudes to the profession, ¹ and while the desire for accountability is understandable and important, it is argued that criminal sanction is only ‘helpful’ where it is morally appropriate and improves patient safety. It is positively harmful where it does little to improve patient safety and to ensure the delivery of safe healthcare, but rather is experienced as punitive in nature and criminalises physicians for incidents of human error. ² The authors of this collection of papers, Ash Samanta and Jo Samanta, Mary-Elizabeth Tumelty and Eimear Spain, Alexandra Mullock, and Clark Hobson and Jose Miola, consider the issue of criminal responsibility for medical injury from a number of different perspectives. In doing so, the papers explore the benefits and harms of the involvement of the criminal law in the delivery of healthcare, and also more generally, consider implications for patient safety and the effective regulation of the medical profession.

The first paper, ‘Death caused by negligent medical care: Reconsidering the role of gross negligence manslaughter in the aftermath of Bawa-Garba’, critically reflects on the role of the offence of gross negligence manslaughter post Bawa-Garba, a case which involved the prosecution of a junior doctor who had recently returned from maternity leave, for gross negligence manslaughter, despite many systemic failures in the case. Here, Ash Samanta and Jo Samanta argue that at present, there is a disproportionate focus on the individual physician and a need to account for wider systemic factors which contribute to patient safety incidents resulting in death, for example, under-resourced, high-pressure work environments. A disproportionate level of blame on the individual poses a risk to patient safety where such wider, systemic issues are left unaddressed. The possible implications for the duty of candour are also explored. The authors propose a model for a new offence of ‘death caused by grave professional negligence’ based on ‘a model of “just culture” for fair attribution of blame and future learning for wider benefit’. ³

The uncertainties generated by the offence of gross negligence manslaughter and its impact on healthcare practice are also considered in Mary-Elizabeth Tumelty and Eimear Spain’s paper, ‘Gross negligence “medical” manslaughter in Ireland: Legal context and clinician concerns’. Drawing on the findings of an empirical study of surgeons in Ireland, Tumelty and Spain critically discuss and analyse the impact of the threat of criminal prosecution on medical practice, including a potential rise in defensive practice. The differences in the operation of the law in this area are also discussed (in Ireland, the risk must be one of ‘substantial personal injury’, rather than a risk of death) and compared with the position in England and Wales. Ultimately, the authors conclude that despite the absence of prosecutions for gross negligence manslaughter in Ireland, there is considerable concern among surgeons about the prospect of prosecution, with potential implications for practice.

Criminal responsibility for patient safety incidents is most often considered in the context of patient fatality, in instances where a prosecution for gross negligence manslaughter may arise. The role of ‘moral luck’ in such prosecutions has been questioned in the literature,^4,5 with some authors noting that in many cases of gross negligence manslaughter, it is a matter of ‘luck’ as to whether there is a fatality and hence, criminal liability. ⁶ Two of the papers in this special issue consider the broader role of the criminal law in relation to non-fatal surgical harm and informed consent, with particular emphasis on the importance of patient autonomy and patient rights.

In Alexandra Mullock’s paper, ‘Surgical harm, consent, and English criminal law: When should “bad-apple” surgeons be prosecuted?’, the legal principles which determine when non-fatal surgical harm becomes a criminal matter are examined. In doing so, the cases of ‘bad-apple’ surgeons Ian Paterson and Simon Bramhall, among others, are considered. The conduct identified in the article is not mere routine patient safety incidents and/or negligence, but rather ‘surgical abuse that demonstrates criminally culpable behaviour’. ⁷ In discussing the complexity of the law in this area, Mullock highlights the challenges of the current legal framework and argues that a more patient-centred approach is required. She notes that the shortcomings with the current framework are not insignificant, and that understanding when non-fatal surgical harm may become a criminal matter is important to protect patients from ‘bad-apple’ practitioners.

Hobson and Miola draw on the theme of patient autonomy and patient rights in their article where they explore the boundaries of the criminal law, and investigate whether there is an argument for breaches of informed consent to be subjected to the criminal law. Provocatively titled, ‘Should we criminalise a deliberate failure to obtain properly informed consent?’, the authors explain that the article ‘takes the form of a polemic and thought experiment’. ⁸ The importance of autonomy is explored throughout, and this principle is examined through the lens of medical, criminal, and tort law. Using the facts in Montgomery v Lanarkshire Health Board, Hobson and Miola draw analogies with the criminal law, but ultimately conclude that application of the criminal law in this context would be unsatisfactory. They further conclude that at present, autonomy is insufficiently protected in both medical and criminal law, and that strides towards improvement in both areas should be made.

This collection of papers thus seeks to further elaborate on current debates in this area on the appropriateness of criminal sanction for medical injury. Together, these articles demonstrate the complexity of legal issues prompted by criminal responsibility for medical harm, and advance the argument on the importance of cultivating a just culture ‘in which blame is restricted to those circumstances in which it is morally appropriate’. ⁹ Determining whether the criminal law is a helpful or harmful mechanism for patient safety is a difficult task. The contributions to this special issue suggest that reform is needed, and a better balance must be struck – between appropriate sanction and regulation, and protecting the rights of patients.