The Impact of the Criminal Process on Healthcare Ethics and Practice

Lead Research Organisation: University of Manchester
Department Name: Law

Abstract

This follow-on project seeks to develop the empirical research findings from an AHRC funded project, 'The Impact of the Criminal Process on Health Care Ethics and Practice.' The original project investigated the involvement of the criminal justice system in suspected cases of 'medical manslaughter' (cases in which the conduct of medical practitioners was suspected of causing the patient's death). The project identified problems with the existing legal test, difficulties in communication between the various agencies involved and discrepancies in the ways in which cases are dealt with. The discrepancies identified present a strong case for a systematic and continuing exchange of our findings with the organisations we have worked with in order to consult, implement and apply recommendations from the research at a practical and policy level as well as to disseminate the findings to other organisations, the professions and the public.

There are relatively small numbers of medical manslaughter cases each year, which means that those investigating them may have no experience in the particular challenges these cases raise. Mistakes made at this stage can and do fatally compromise an investigation. Healthcare cases are often regarded as a low priority for the police who lack experience in handling such investigations. Medical manslaughter cases are supposed to be referred to the the Crown Prosecution Service Special Crime Division (SCD) but practice on this varies. A significant number of investigations still reach the SCD at a late stage or are not referred. This results in costly, lengthy and poor quality investigations, to the detriment of the parties involved and to the NHS (as the professionals may be suspended from practice during this time).

A number of agencies may become involved in the investigation of the causes of such deaths and in determining whether any fault can be attributed to the practitioners involved. Communication between different organisations is often poor and organisations such as the Health and Safety Executive (HSE) often fail to become involved. Current protocols intended to facilitate effective organisation of enquiries between different agencies are failing and do not include the Crown Prosecution Service or coroners.

The follow-on project will explore the best ways of dealing with these cases (from the points of view of the victims' families, those under suspicion and the investigating and prosecuting agencies). It will facilitate the exchange of ideas and experience between practitioners in England and Wales. As a result of consultation with our project partners, we will produce documents to facilitate the effective investigation and management of such cases. In particular we will produce case management guidance to enable more consistent and effective treatment of cases of medical error and will have a tangible effect at the level of policy and practice on the application of the criminal law in such cases. We will also produce an accessible handbook aimed at medical and legal practitioners and students outlining the guidance, recommendations and protocols surrounding medical error and the criminal process produced as part of the project. We will disseminate our findings to an academic audience via journal articles. Finally, we will explore the experience in England and Wales identified in our research with colleagues in Scotland and discover what both jurisdictions can learn from each other.

Planned Impact

This project is intended to benefit a wide range of practising professional, academic and lay groups.
Our original research identified significant changes over ten years in how cases of suspected fatal medical error are treated at all stages of the criminal process. During this time, there was a threefold increase in complaints by families to coroners and the police about standards of medical treatment a relative had received. Responding to such complaints, the numbers of inquests and police investigations has almost doubled over ten years . This propensity to complain and investigate can be linked to high profile patient safety scandals and legal challenges within the coronial system . The quality of police investigations, which were once 'appalling', appear to have improved with the early involvement of the CPS Special Crime Division (SCD), nevertheless there is still scope for improvement. The research revealed discrepancies in the application of the criminal process in cases of medical error. Inconsistencies and poor organisation pervade the investigation of many of these cases, resulting in costly, lengthy and poor quality investigations. This is to the detriment of the families, those under investigation, to the NHS (as the professionals may be suspended from practice during this time) and the improvement of patient safety.
This follow on project intends to facilitate improvement for the benefit of all parties involved. The discrepancies identified present a strong case for a systematic and continuing exchange of our findings with the organisations we have worked with in order to consult, implement and apply recommendations from the research at a practical and policy level as well as to disseminate the findings to other organisations, the professions and the public. This will result in benefits to the following groups:


1. Improved consistency in how the coronial service deals with cases of medical error, to lessen the 'postcode lottery'. Our case management guidance will be disseminated across all coroners' courts in England and Wales and will promote consistency and change within the coronial system benefitting both families and the health care professionals.
2. Consultation with the police on our findings and wide dissemination of protocols will improve consistency in how the police investigate medical error, greatly reducing the time and costs associated with many investigations, benefitting families, health care professionals, the SCD and the NHS.
3. Case management guidance will assist in ensuring that the appropriate body deals with medical cases. The roles and responsibilities of all organisations including regulatory bodies, such as the Care Quality Commission, will be understood by all partners. Meetings will assess the impact of this and ensure a more effective system to address and deter error.
4. Consultation with the police and CPS on the use of alternative offences in certain cases of (fatal and non fatal) medical error, and the inclusion of this consultation within our production of guidance and dissemination activities will ensure that the criminal process provides more effective punishment and deterrence in these cases, benefitting all parties.
5. Legal and medical practitioners will benefit from the handbook. Little guidance currently exists for such groups, particularly on the discrepancies in the criminal process that our project addresses. Patient advocacy groups, MDOs and organisations such as the NHSLA will also benefit.
6. We will engage with partner organisations to assess how far lessons from the Scottish system are advanced as a result of our protocols.
7. The project will be of value to academic audiences in healthcare law and ethics. The papers and seminar drawing on our consultations and knowledge transfer activities will be a novel and important contribution.
 
Description Empirical studies were conducted with a range of organisations including the Crown Prosecution Service (CPS), the police, coroners, lawyers and medical defence organisations in order to analyse the role of the criminal justice system in regulating medical (mal) practice and ethics in England and Wales. This work identified discrepancies in the way in which cases of medical error were dealt with in the criminal process. An AHRC funded follow on project commenced in October 2011 in order to disseminate and address these discrepancies. Along with our project partners, the Association of Chief Police Officers (ACPO), HM Coroner for Manchester, INQUEST, CPS, Health and Safety Executive (HSE), we plan to produce recommendations which address how different agencies deal with medical error, enabling a more consistent and effective treatment of cases which will more successfully enhance patient safety. The major recommendations include ensuring more consistency in the coronial system, Police and CPS, ensuring regulatory bodies' involvement where necessary and consider a wider use of offences in order to ensure proper accountability.
Exploitation Route The handbook and recommendations document has and will be widely disseminated to partner organisations. We will follow up this dissemination in order to discover how far our findings have informed practice.
Sectors Healthcare,Government, Democracy and Justice

 
Description Our findings, contained in a recommendations document and handbook, have been disseminated to partner organisations and related practitioners through a series of seminars, conferences and media appearances. The dissemination has provided information and recommendations on good practice to key members of this field.
First Year Of Impact 2011
Sector Healthcare,Government, Democracy and Justice
Impact Types Societal,Policy & public services

 
Description AHRC Policy workshop
Geographic Reach National 
Policy Influence Type Influenced training of practitioners or researchers
 
Description Influence on Policy
Geographic Reach National 
Policy Influence Type Participation in a national consultation
Impact Our findings have influenced criminal justice agencies, medical defence organisations, health care professionals and professional organisations through the dissemination of our findings and policy recommendations at our seminars and conferences.
 
Description Response to consultation on wilful neglect
Geographic Reach National 
Policy Influence Type Participation in a national consultation
 
Title Interviews partners 
Description We conducted qualitative interviews with all partners involved in the follow on project 
Type Of Material Database/Collection of data 
Year Produced 2012 
Provided To Others? Yes  
Impact The partners have used our results to inform future practice 
 
Title Scottish interviews 
Description Collection of interviews conducted with practitioners in Scotland 
Type Of Material Database/Collection of data 
Provided To Others? No  
Impact Informed the development of our recommendations 
 
Description Crown Prosecution Service 
Organisation Crown Prosecution Service (CPS)
Country United Kingdom 
Sector Public 
PI Contribution Organised meetings, advised on their work, helped to disseminate recommendations
Collaborator Contribution Attended meetings, advised on our work, helped to disseminate recommendations
Impact Recommendations documents Handbook
Start Year 2011
 
Description Health and Safety Executive 
Organisation Health and Safety Executive (HSE)
Country United Kingdom 
Sector Public 
PI Contribution Organised meetings
Collaborator Contribution Attended meetings, advised on our work
Impact Recommendations document Handbook
Start Year 2011
 
Description INQUEST 
Organisation INQUEST
Country United Kingdom 
Sector Charity/Non Profit 
PI Contribution holding meetings and seminars
Collaborator Contribution advising on recommndations and helping with dissemination
Impact recommendations document
Start Year 2009
 
Description MDU 
Organisation Medical Defence Union (MDU)
Country United Kingdom 
Sector Charity/Non Profit 
PI Contribution ? we developed good links within the Medical Defence Union (MDU). We interviewed senior lawyers within the MDU and were invited to write an article about our research for their journal. They participated in our internal conferences and seminars, engaging and discussing our findings. The work that we conducted with the groups has resulted in book and journal publications as well as conference presentations.
 
Description Police 
Organisation Metropolitan Police Service
Country United Kingdom 
Sector Public 
PI Contribution ? Greater Manchester Police and the Metropolitan Police also cooperated with the work. The work that we conducted with the groups has resulted in book and journal publications as well as conference presentations.
 
Description Dublin lecture 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Other academic audiences (collaborators, peers etc.)
Results and Impact the paper delivered sparked questions and discussion

The paper generate further emails and enquiries
Year(s) Of Engagement Activity 2013
 
Description Edinburgh meeting 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other academic audiences (collaborators, peers etc.)
Results and Impact Papers were presented and resulted in lengthy discussions

Peers developed further understandings of our work
Year(s) Of Engagement Activity 2011
 
Description Media appearance 
Form Of Engagement Activity A press release, press conference or response to a media enquiry/interview
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Media (as a channel to the public)
Results and Impact Appearance on 'Today' programme Radio 4 - generated further queries from members of the audience
Year(s) Of Engagement Activity 2012,2013
 
Description Media appearance 
Form Of Engagement Activity A press release, press conference or response to a media enquiry/interview
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Media (as a channel to the public)
Results and Impact Talk generated email enquiries
Year(s) Of Engagement Activity 2013
 
Description Partner meeting 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Small focused meeting with our partner groups in order to draw up our recommendations with their input

Partners all engaged with recommendations document
Year(s) Of Engagement Activity 2011
 
Description Public lecture 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Postgraduate students
Results and Impact Paper generate discussion

Further questions and engagement
Year(s) Of Engagement Activity 2012
 
Description Seminar and partner meeting Manchester 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact We presented our recommendations and invited feedback and discussion

Improved understanding and willingness to change
Year(s) Of Engagement Activity 2011
 
Description Seminar in House of Lords 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact We presented our recommendations and invited feedback and discussion

Future engagement with key stakeholders
Year(s) Of Engagement Activity 2011
 
Description Workshop for professionals 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Meeting of diverse stakeholders to explore the policy and practice relating to prosecutions of doctors
Year(s) Of Engagement Activity 2016