Homicide

The offences that are likely in practice to be the most important ones at the top of the hierarchy of criminal wrongdoing in healthcare contexts are those involving gross negligence manslaughter. In circumstances where gross negligence in the provision of healthcare results in the death of a patient, any individual person may be criminally liable for the common law offence of manslaughter by gross negligence. This offence has been used to prosecute medical staff.15 It is committed where (a) the individual owed a duty of care not to cause the death of the patient, (b) a breach of the duty caused the death of the patient and (c) the breach of duty came about through gross negligence on the individual's part as to whether death might be caused by his or her act or omission. This offence applies mainly to individuals or very small companies, and is likely to be an inappropriate charge against the management body of a hospital, regional authority or Clinical Commissioning Group. In circumstances where senior managers of organisations have contributed to grossly negligent care resulting in the death of a patient, such organisations might then be criminally liable for corporate manslaughter arising under the Corporate Manslaughter and Corporate Homicide Act 2007.

Posing unacceptable risks of harm

The posing of risks of harm through unsafe working practices is governed by the Health and Safety at Work Act 1974. Accordingly, there is no need to create a specific offence of exposing patients to an unacceptable and continuing risk of harm.16 The offences and defences under the 1974 Act should not be modified in an attempt to make them ‘fit’ the healthcare context better as this would set an unwelcome precedent, opening the door to many other organisations asking to be treated in a similar ‘special’ way. The Francis Report's discussion of the role of the HSE in enforcing the 1974 Act demonstrates that problems concerning its application to the healthcare sector do not arise from the scope of the Act's offences. Rather, problems arise from the urgent need to ensure that the HSE is adequately resourced, and for much greater clarity and practical coordination concerning how the overlapping jurisdiction between the HSE and healthcare regulators will be handled.17

Neglect and ill-treatment of patients

The preceding discussion demonstrates that adequate criminal offences already exist that would apply, broadly speaking, (a) to the causing of patient deaths arising from gross negligence on the part of individual healthcare workers or healthcare organisations or (b) from organisational conduct that exposes patients to an unacceptable and continuing risk of harm (whether or not such risks actually materialise). In relation to non-fatal offences against patients, however, there is a significant gap in the law. There is no clear and simple hierarchy of harmful wrongdoing subject to criminal sanctions that are relatively general in scope and applicable to the healthcare sector. For example, any of the following criminal offences might apply to the causing of non-fatal harm in particular healthcare contexts including:

• The common law offence of misconduct in a public office. This offence is committed when a public office holder's breach of duty manifests misconduct so bad as to amount to an abuse of the public's trust. It has been applied to prison service nurses (for acting corruptly)

• The offence under section 44(2) Mental Capacity Act 2005 of ‘ill treatment or neglect of a person lacking mental capacity’

• The offence under section 127 Mental Health Act 1983 for any hospital or independent care home (i) to ill-treat or wilfully to neglect a patient receiving treatment for a mental disorder as an inpatient in that hospital or home, or (ii) to ill-treat or wilfully to neglect, on the premises of which the hospital or home forms part, a patient who is receiving such treatment there as an outpatient

• The offence of child cruelty under section 1 Children and Young Persons Act 1933. This offence is concerned with the conduct of a person ‘responsible’ for a child or young person and involves (among other things) wilfully ill-treating or neglecting a child or young person (or causing such a child or young person to be neglected or ill-treated) in a manner likely to cause the child or young person unnecessary suffering or injury to health

• Some of the offences created under section 51 of the Private and Voluntary Healthcare (England) Regulations 2001, which set out more detailed requirements for the provision of treatment services to patients, such as regulation 15(b) which states that treatment provided to patients must reflect published research evidence and guidance issued by the appropriate professional and expert bodies as to good practice in treating the patient's condition

• A number of offences created by the Heath and Social Care Act 2008 (Regulated Activities) Regulations 2010 for breach of the so-called ‘essential standards’ in healthcare, such as the requirement in regulation 14(a) that service users must be protected from the risks of inadequate nutrition and dehydration, including the provision of a choice of suitable and nutritious food and hydration in sufficient quantities to meet service users’ needs.

There is nothing systematic about the relationship between these offences, which were created at different times for different purposes. Others could be added to the list. It is noteworthy that the Crown Prosecution Service has said, in relation to the neglect of elderly patients, that: in cases where the victim has not died, and does not have a loss of capacity under the Mental Capacity Act 2005 and is not being treated as a patient for the purposes of the Mental Health Act, prosecutors may find it difficult to identify an appropriate criminal offence.18

The Crown Prosecution Service rightly highlights the absence of any clear, general offence that applies to non-fatal harm caused by uncaring attitudes, ill-treatment, gross negligence or catastrophic management failure. Hence, under existing law, an anomalous situation may arise where two adults are receiving wholly wrong and harmful treatment in the same healthcare facility, but only one lacks capacity for the purposes of the Mental Capacity Act 2005. In such an example, there could be a prosecution for wilful ill-treatment only in relation to the patient lacking mental capacity. Yet many patients in ordinary hospitals, who do not lack capacity under the Mental Health Act 1983 or the Mental Capacity Act 2005, may nevertheless be vulnerable, too trusting to effectively make sound choices about treatment for themselves, and unwilling or unable to alert others when something is going wrong. They should be given a similar level of legal protection under the criminal as well as the civil law.

There are several ways of filling this gap. The Francis Report suggests drawing a line between causing ‘serious’ harm (appropriate for criminalisation), and lesser harms or risks (not to be criminalised).19 But this suggestion presents difficulties because there is no legal definition of ‘serious’ harm so that the issue is currently a matter for the jury and because a minor harm caused to a patient may develop (perhaps, through unforeseen medical complications weeks or months later) into a serious harm, at which point the possibility of criminal liability will open up when it was inapplicable at the earlier time, generating uncertainty. Hence a preferable approach is to focus the offence on the fault element: on the wilful neglect or ill-treatment involved in the conduct in question, leaving the nature and degree of harm caused thereby as a matter for sentence aggravation in appropriate cases. This approach is consistent with the general principle that criminal liability should in general not be used to punish mere carelessness or inadvertence. Hence it would be wrong to criminalise understandable or momentary errors, slips or instances of forgetfulness, even when they may lead to serious consequences. Rather, a serious kind or degree of fault must be shown. Accordingly, we support the introduction of a general offence on the following lines: wilfully neglecting or ill-treating a patient, or wilfully causing a patient to be neglected or ill-treated.

This should be an offence that can be committed by any healthcare organisation or worker (appropriately defined). Such an offence clearly goes beyond the causing of injury. It may include neglect or ill-treatment stemming from (say) the tolerance of unsanitary conditions, persistent verbal abuse or intimidation, malevolent denial of visiting rights, or discharging sick patients before they are fit for discharge.

Offences committed through ‘wilful’ neglect or ill-treatment require proof of intention or knowledge as to the inadequacy of care or treatment, or a ‘couldn't care less’ attitude towards the inadequacy.20 They would be broadly based on similar existing specialised offences (referred to above), so that the interpretation and application of the offence could draw upon words and concepts already familiar to the courts. The offence could be committed by a health service organisation and/or an individual healthcare worker. The offence is more likely to be committed through knowledge or a ‘couldn't care less’ attitude, rather than intentionally. In the case of a health service organisation this might occur when, for example, reports of ill-treatment are ignored or suppressed, or where members of staff are discouraged from reporting such incidents. It should be triable in either the Magistrates’ or the Crown Court. For Crown Court trials, in our view a maximum sentence of 2 years’ imprisonment (an unlimited fine, in the case or organisations) is probably about right, although the Berwick Report rightly observed that the modern Parliamentary preference is for a 5-year maximum: in line with the maximum sentence available for wilful neglect of someone receiving treatment for mental disorder, under section 127(1) of the Mental Health Act 1983, and for wilful neglect of someone lacking (or reasonably believed to be lacking) capacity, under section 44 of the Mental Capacity Act 2005. A 5-year maximum may nonetheless seem excessive to many (including the authors). However, maximum sentences are almost never imposed in practice, and it is worth noting that 5 years’ imprisonment is also the maximum sentence available for the more general offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861.