Doctors and nurses working in England and Wales can face serious consequences over the wilful neglect or ill-treatment of patients, including criminal charges. Sections 20 to 25 of the Criminal Justice and Courts Act 2015 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's about what the healthcare worker actually did (or failed to do) to the patient, rather than any resulting harm.
When the offence applies
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 organisations, 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 designed to harm or distress a patient. The GMC's core ethical guidance, Good medical practice (2013), makes it clear how healthcare professionals should make patient care their primary concern:
"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 offers examples to show what the offence is not meant to do. 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.
These examples 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 ever entirely prevent complaints being made, or prevent police investigations from taking place.
A very busy shift in the emergency department
It's 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 their notes and ask the on-call surgical team to admit the patient when they're 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 didn't 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 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'd brought him 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.
This scenario may be familiar to any doctor who has worked in a busy hospital and the context is important. There's no suggestion that the junior doctor deliberately failed to act despite being aware of the consequences of delaying treatment. But that might not be sufficient to prevent a police investigation, even if a decision is subsequently made not to prosecute.
Investigations like this 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.
It's essential to get proper legal advice if you're facing a police interview under caution following an allegation of neglect or ill-treatment, and contact our advice line as soon as you can (and before giving a statement to the police).
The following points may help reduce the likelihood that a patient or their relatives complain to the police.
- Consider if there will be any significant delay in providing treatment or making a diagnosis. If there's likely to be significant delay, tell the patient why (for example, because of limited resources, such as a waiting list), what you're doing to expedite matters where possible, and make sure the patient knows to 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 how best to manage that. However, it may be easy to overlook basic aspects of care such as dignity and pain management when workload affects how much time you can give your patients, so it's essential to keep all this in mind - especially when it gets busy.
- If you lead a clinical team, do you have systems in place to ensure that patients don't become lost to follow-up, or if you're delegating or transferring care to another colleague, making sure this is done properly and safely?
- If you work with vulnerable patients, make sure you're 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 should encompass discussions with patients and, where appropriate, their relatives or carers, but good communication with colleagues and those caring for patients is also essential. Communication may be face-to-face, via video or over the telephone, but don't forget that written instructions, particularly in clinical records, are also vital for colleagues to continue to provide care.
- Although police investigations will be rare, it's important not to panic. Don't add to or improve clinical records. Instead, make detailed notes for yourself while events are fresh in your mind. Get expert advice from your medical defence organisation as soon as possible.
This page was correct at publication on 16/12/2021. Any guidance 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.