Personal accountability and right organisational processes are necessary to ensure criminal liability is not unfairly skewed against healthcare professionals in the event of an accident. By Duncan Astill

Duncan Astill

Duncan Astill

Duncan Astill

Central to the on-going junior doctors’ dispute is if the deal that we have struck with them is reasonable, in terms of benefits to both them and the NHS. Wrapped up in that is whether they are treated fairly when things go wrong.

Healthcare bodies are at higher risk of corporate or gross negligence manslaughter than other organisations, due to the vulnerable people in their care.

Does individual liability prove more effective than corporate liability?

In the ever-increasing event that they come under scrutiny for deaths or harm, they need to prove their internal assurance processes are effective, and that they have done everything reasonably practicable to prevent harm. But will increased sanctions and the criminalisation of individual health and care professionals lead to better patient care?

How can organisations ensure they have the right processes in place to support individuals? Does individual liability prove more effective than corporate liability? Or will it lead to a talent drain and, ultimately, reduced care quality for patients?

Personal accountability

Since the Mid-Staffordshire Public Inquiry we have seen a significant increase in legislation designed to influence the behaviours of the individual care professional.

Changes to the Care Quality Commission (CQC) enforcement powers, new standards of care (including the duty of candour and fit and proper person requirements) and a new criminal offence of patient neglect were all recommended by Robert Francis QC as a way of increasing the accountability of those who do not provide safe and compassionate care.

Such measures are only needed if a lack of accountability was the driving force behind the levels of care provided to patients in Stafford, as they put the onus fully on the individual.

The truth is that there is little understanding of the impact of potential criminal sanction on the behaviour of individual healthcare professionals

The assumption from Mid-Staffordshire that existing legislation and professional regulation was insufficient to cast more than a theoretical shadow over staff behaviour is unproven, particularly as healthcare professionals were already more likely to face criminal prosecution for their actions in the workplace than in any other profession.

An analysis of media reports from December 2014 to December 2015 identified ten individuals and one NHS Trust charged with manslaughter.

Those cases sit atop a mountain of professional regulatory and medical negligence claims that make it difficult to believe that more cases are needed to drive the message home.

Public perceptions

The most significant change in recent years has been the level of potential error that attracts public attention. Police and regulators seem driven by consequence rather than culpability.

While that may be appropriate in other industries, healthcare – where death can be an inevitable part of the patient journey – needs a more circumspect approach.

It is not the level of harm that should power the investigation but an early assessment of the real culpability of those involved.

The long-term impact of continually using the criminal law to deal with failures in delivery of care is questionable

The truth is that there is little understanding of the impact of potential criminal sanction on the behaviour of individual healthcare professionals.

Professor Sir Liam Donaldson was very clear in his evidence to the Mid-Staffordshire Public Inquiry that it is generally undesirable to bring the criminal law into the clinical arena, as it inhibits openness and improvement.

However, Robert Francis claimed there was a “serious danger that public confidence and trust in the health service will be undermined.” This seems at odds with other recommendations that advocated strongly for transparency and openness to prevent such insufficient care in the future.

Indeed, research on Doctors.net.uk identified that 90 per cent of doctors admitted being more defensive as a result of the fear of litigation and felt that this did not translate into safer care for patients.

Healthcare professionals under examination

Individuals should face personal accountability for their actions, in appropriate cases, but we need to be careful that their behaviours are judged in the right way. While some healthcare professionals are clearly reckless or grossly negligent in the true criminal sense, very few set out to intentionally cause patients harm.

More often that not, individuals are simply overstretched and under resourced, doing a difficult job in the face of limited experience and access to advice. They are accountable to the chain of command and the expectations placed on them in the clinical environment.

It is time to reset the balance between accountability and trust

The long-term impact of continually using the criminal law to deal with failures in delivery of care is questionable.

In addition, while it’s important for individuals to take responsibility for their part in any incidents, corporate liability – whether civil or criminal – serves to incentivise organisation-wide safe systems and good practice, as it does across all industries.

Re-balancing accountability and trust  

While the case of a consultant colorectal surgeon convicted of gross negligence manslaughter in 2013 produced fewer shockwaves than Mid-Staffordshire, there are still a significant number of professionals concerned that the case shows the threshold for criminal liability is unfairly skewed against the individual.

A root cause analysis report that identified that systemic (rather than individual) failings were what ultimately caused the patient’s death is used as an example of this disconnect by campaigners.

Healthcare bodies are at higher risk of corporate or gross negligence manslaughter than other organisations, due to the vulnerable people in their care

If we don’t re-assess the current demand for personal accountability we may find that there is no one to care for us when we are ill, or that we simply can’t afford to pay people enough to take the risk.

It is time to reset the balance between accountability and trust, and in the words of Professor Sir Liam Donaldson, protect “honest failure”.

That is not to say that there should not be personal accountability for individual actions, just that the threshold for those cases that end up before the criminal courts should start moving in the other direction.

Duncan Astill is a partner at Mills & Reeve