How can the criminal law support the provision of quality in healthcare?

The egregious failings in patient safety at Mid Staffordshire NHS Foundation Trust between 2005 and 2009 identified by Sir Robert Francis QC in his public inquiry prompted him to recommend the introduction of a new criminal offence into English law in circumstances where a patient dies or is seriously harmed by a breach of fundamental standards. The authors evaluate whether, from the perspective of fairness and justice, a new criminal offence in this context is necessary and desirable.

The authors considered the basic principles and functions of the criminal law and compared them with the principles and functions of the civil law. They then identify two primary tasks for the criminal law to perform in healthcare settings: (a) to establish primary duties to patients consisting of appropriately graded offences targeted at conduct that harms patients or unjustifiably poses risks to patients, and (b) to establish secondary duties to patients, consisting of offences aimed at punishing and deterring instances in which healthcare management and workers undermine the goals of regulation by lying or giving misleading information to regulatory officials or by obstructing their work. The authors focus on the first of these functions, identifying the scope of existing regulatory schemes that may give rise to criminal liability in English law when applied to healthcare contexts to identify whether a new criminal offence is needed.

A gap in the existing regime of criminal liability is identified, and it is this gap which a new criminal offence seeks to fill. The authors suggest how such an offence should be structured, drawing primarily upon foundational principles of criminal liability. It is suggested that a new general offence of wilfully neglecting or ill-treating a patient that can be committed by any healthcare organisation or worker (appropriately defined) is warranted.

The criminal law has an important role to play in the healthcare context. Its central function is not primarily to deter and coerce people into complying with standards of behaviour deemed desirable. Rather, its central function lies in its symbolic and expressive significance, publicly proclaiming that the highly culpable mistreatment of others is wrongful and worthy of public censure and sanction.