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.
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.
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.
Organisations
- University of Manchester (Lead Research Organisation)
- Medical Defence Union (MDU) (Collaboration)
- Health and Safety Executive (Collaboration, Project Partner)
- Crown Prosecution Service (CPS) (Collaboration)
- INQUEST (Collaboration)
- Metropolitan Police Service (Collaboration)
- Manchester City Council (Project Partner)
- Durham Constabulary (Project Partner)
- INQUEST (Project Partner)
Publications
Hannah Quirk
(2013)
Sentencing White Coat Crime: The Need for Guidance in Medical Manslaughter Cases
in Criminal Law Review 2013
Griffiths, D
(2014)
Following the law or using the law? Decision making in medical manslaughter
Brazier, M
(2016)
Law, Ethics and Medicine: Essays in Honour of Peter Skegg
Brazier M
(2017)
Improving healthcare through the use of 'medical manslaughter'? Facts, fears and the future
in Clinical Risk
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 | Contribution to a national consultation/review |
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 | Contribution to a national consultation/review |
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 | Private |
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 | Regional |
Primary Audience | Media (as a channel to the public) |
Results and Impact | Talk generated email enquiries |
Year(s) Of Engagement Activity | 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 | 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 | 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 |