The Impact of the Criminal Process on Healthcare Ethics and Practice

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.

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.