The new criminal sanctions of wilful neglect or ill-treatment
From 13 April 2015, section 20 of the Criminal Justice and Courts Act 2015 applies to individuals such as doctors, dentists and nurses and it states:
"It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual."
The offence focuses on the conduct of the individual, not the outcome. It is to do with what the healthcare worker actually did (or failed to do) to the patient, rather than any harm that resulted.
Organisations and individuals will face different thresholds for the offence, with the possible result that prosecutors may find it easier to secure a conviction against an individual. For organisations1, the offence focuses on the way their activities are managed and organised, and whether an incident amounts to a gross breach of a relevant duty of care owed to the patient. Prosecutors will not have to prove that individual clinicians committed a gross breach of a duty of care to the patient, making it easier to prosecute them rather than their employing organisation.
No-one would condone any deliberate act or omission by care staff designed to harm or distress a patient. Basic ethical principles make clear how healthcare professionals should make the care of their patients their primary concern. For example, the GMC in its core ethical guidance, Good medical practice (2013) says2:
"Good doctors work in partnership with patients and respect their rights to privacy and dignity. They treat each patient as an individual. They do their best to make sure all patients receive good care and treatment that will support them to live as well as possible, whatever their illness or disability."
The Department of Health has given examples3 to show what the offence is not meant to do, and these include:
Penalising genuine accidents or errors;
Hindering the free exercise of clinical judgement;
Hindering organisations from making considered decisions on selection criteria for particular treatments.
The examples help to demonstrate that there would need to be a significant or serious departure from acceptable standards of care for there to be an offence, but of course no amount of guidance will prevent complaints being made, and police investigations of healthcare professionals ensuing. Consider the following case study.
Case study
A very busy shift in the emergency department
It is an exceptionally busy late November in a hospital emergency department. The consultant is leading a team treating a patient with multiple trauma following a car accident and a specialist trainee is assessing an 18-year old man with abdominal pain. The junior doctor is sure the patient has appendicitis and is about to write her notes and ask the on-call surgical team to admit the patient when she is suddenly called away because an elderly woman with an upper gastrointestinal bleed has been admitted and is in the resuscitation room.
Despite the best efforts of the junior doctor the woman with the haemorrhage dies, and there is considerable delay as relatives are counselled and the coroner's officer is informed of the unexpected death. The young man with the probable appendicitis is completely forgotten about, compounded by the absence of notes so the nursing staff did not know of the junior doctor's initial intention to contact the surgical team.
The patient with abdominal pain worsens, and the junior doctor is urgently called to review him. It appears that he now has generalised peritonitis, possibly due to a ruptured appendix and he is very unwell.
The surgeons promptly arrive and take over the patient's care. He does subsequently make a good recovery. The young man's father, who had brought him in to the emergency department can be overheard bitterly complaining to the consultant that his son had been neglected and that the junior doctor had failed to act to get him seen by the surgical team.
MDU advice
This scenario may be familiar to any doctor who has worked in a busy hospital and the context is important. There is no suggestion that the junior doctor deliberately failed to act despite being aware of the consequences for delaying treatment. But that might very well not be sufficient to prevent a police investigation, even if a decision is subsequently made not to prosecute. Such investigations can be very stressful for doctors and may be associated with other sanctions, such as suspension by an employer and/or referral to the GMC, and can last for months if not years.
Should you face a police interview under caution following an allegation of neglect or ill-treatment of a patient you are caring for it is essential to get proper legal advice from the outset, and contact the MDU's advice line as soon as you can (and before giving a statement to the police). Some general points may be helpful to keep in mind to reduce the likelihood that a patient or their relatives complain to the police.
Consider if there will be any significant delay in either providing treatment to a patient or making a diagnosis. If there is likely to be significant delay it is vital to tell the patient why it has occurred (for example because of limited resources, such as a waiting list), what you are doing to expedite matters where that is possible, and ensure the patient is aware that they must seek urgent medical advice if their condition worsens.
Will any treatment be painful for the patient, or significantly impact on their dignity? Healthcare professionals will normally be very aware of the need to preserve the patient's dignity, as this is a fundamental tenet of good medical practice. Doctors will also be aware that some procedures are painful and will discuss with patients as to how best to manage that. However, it may be easy to overlook such basic aspects of care such as dignity and pain management where workload impacts on the amount of time you can give to your patients, so it is essential to keep these points in mind, especially when it gets busy.
If you lead a clinical team, do you have systems in place to ensure that patients do not become lost to follow-up, or if you are delegating or transferring care to another colleague that you ensure this is done properly and safely?
If you work with vulnerable groups ensure that you are familiar with and have had necessary training in safeguarding principles. Act promptly when you discover information or clinical signs that suggest a safeguarding issue.
As in many aspects of medical practice, good communication is fundamental to providing appropriate care. Good communication must encompass discussions with patients, but it also applies equally to colleagues and those caring for patients. Much communication will be face-to-face, but don't forget that written instructions, particularly in clinical records, are vital for colleagues to provide continuity of care.
Finally, although police investigations will be rare, it is important not to panic. Don't add to or improve clinical records but instead make as detailed a note for yourself as soon as you can while events are fresh in your mind. The best thing to do is to seek expert advice from your medical defence organisation as soon as you are able.
1. Section 21 of the Criminal Justice and Courts Act 2015
2. GMC, Good medical practice (2013), paragraph 2.
3. Department of Health, New offences of ill-treatment or wilful neglect: Government response to consultation, published 11 June 2014
This guidance was correct at publication 09/04/2015. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.
