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Doctors should not be criminalised for doing their job

Letter from Dr Rob Hendry, Medical Director at Medical Protection

This week Sir Norman Williams, senior clinical adviser to the health secretary Jeremy Hunt, shared his unease at the prevailing atmosphere of blame and retribution surrounding unintended healthcare errors, and the likely implications should a 'culture of fear' really take root.

We believe a criminal court is rarely the best place to hold a doctor to account

Sir Norman did not mince his words – and nor should he. The criminalisation of those who go to work to help people and save lives, whether that is a GP or a surgeon, carries serious repercussions.

The question of whether doctors should face a prison sentence when things go tragically wrong in a complex clinical environment, without intent to cause harm, has resurfaced following the appeal of David Sellu’s conviction for manslaughter by gross negligence.

Medical Protection supported Mr Sellu’s appeal, and like Sir Norman and many others across the profession, we believe a criminal court is rarely the best place to hold a doctor to account. We strongly opposed the introduction of criminal sanctions for ill treatment or wilful neglect which were brought into law in England and Wales through the Criminal Justice and Courts Act 2015, and felt the existing framework was effective at reprimanding unprofessional behaviour.

By focussing on punishment and allowing the threat of a prison sentence to hang over the heads of those unfortunate enough to be at the centre of a tragic patient death, we will create a plethora of complex problems which will impact on GPs and the healthcare sector as a whole, but also on society.

Firstly, there is a risk that fear of criminal sanctions will result in more 'defensive medicine'. This means opting for treatments which do not expose the physician.

Our research shows that working in an increasingly litigious environment already impacts on doctors’ behaviours - 67% of GPs say they are fearful they will be sued by patients, and of those 85% say that fear affects the way they practise. So we know the current claims environment is making doctors more cautious. More conscious defensive behaviour, where self-preservation takes precedence over the interests of the patient by choice, would obviously have a much greater impact on the public in terms of the care they receive and is something we must avoid.

Secondly, we risk good doctors leaving the profession at a time when the health system is under pressure and the next generation of doctors being put off by a culture of fear, or 'blame and shame'.

It is critical that all doctors feel able to report adverse incidents and near misses so they and the wider profession can learn from mistakes and make improvements. A culture of fear will seriously hinder this open, learning ethos.

New legislation on Duty of Candour is now in place in England and Wales. We do not believe a legal duty is the best way to bring about real change in an area like this due to its behavioural nature, though the intention behind it – to encourage transparency and openness - is right. There is however an inherent tension between a policy like this which seeks to promote an open culture, and another which serves to allocate blame on an individual and inhibit openness. This therefore raises the question of why criminal prosecutions against doctors are still being threatened.

David Sellu’s case was tragic for all involved and fraught with complexity - we are pleased his conviction was quashed and his name finally cleared. Medical Protection, alongside senior figures like Sir Norman Williams, will continue to challenge the appropriateness of a criminal court to hold a doctor to account when things go wrong in a complex clinical environment - where there is no intent to cause harm. We will also work to foster a culture of open learning, professionalism and accountability.

If you would like to write to Pulse, please email

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Readers' comments (10)

  • Thanks for your very reasonable thoughts. Litigation is top of the list of reasons for me to leave the NHS. It is not only costly in loss of staff, money and goodwill. It is just plain wrong.

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  • I would not be a doctor again. Two GPs were charged with manslaughter over a failure to visit, when they were already doing a surgery.
    For me, this raises the problem that I have a sick child in the surgery and I cannot e in 2 places at the same time.
    Since the child was so ill, why was it not taken to hospital on a 999?
    Sir James Dyson is starting an engineering college because there is such a shortage.
    Why would be a doctor when you could be jailed with the murderers and rapists for NOT even making a mistake, but getting a judgement wrong.?
    Why ?
    Please, just DO NOT become a doctor. Your career could end on the day it starts after 10 - 14 years of study.

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  • I should have thought that if a doctor did his or her best for a patient with up to date clinical evidence and guidelines, they should not be prosecuted. If it is not clear then a hearing may clear up the doubt. If the doctor wanted to injure or kill someone then intent would have to be proved. It is rare for a doctor to be prosecuted. I have read of doctors having to drive sick patients to Hospital because the ambulance service forecast it would get there too slowly (due to financial cuts). Failure to visit may be solved by taking sufficient details from the patient or relative and being experienced in assessing urgency. I am sure if the doctor had to do an urgent visit, the waiting patients at the surgery would understand the wait. The doctor has the choice of an urgent visit or calling the ambulance if it can get there faster than the doctor. Ambulances are currently having to be waited for, for longer periods than used to be the case, due to the Government's severe underfunding of the NHS. Try not to get caught by the failure of the Government to fund the NHS properly. I know it is not easy.

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  • I have completely altered how I work over the lat 10 years.
    1 I write lots and lots of notes
    2 The notes reflect clear and precise diagnosis-regardless of the clinical uncertainty
    3 I do lots of unecessary obs (sats,resp rate, capillary refill,GCS etc etc)
    4 I dish out antibiotics like smarties
    5 I have a ver low threshold for referrals (whether urgent or routine)

    I no longer do what I think is in the best interest of the patient. I do what I think will gave me the best defence should anything go wrong.

    So when mum says can little Johnnie have a home visit as too ill to get to the surgery--I say call 999.

    At least I have a fighting chance now.

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  • Vinci Ho

    One very interesting point brought on by Oliver Quick, senior lecturer in Bristol University, was repeating the argument of establishing the verdict of manslaughter only AFTER proving 'recklessness ' rather than 'gross negligence'. Apparently, the Law Commission never changed the law even after looking into this argument in 2006.
    In addition , there was also concern the original trial judge did not give enough 'assistance '(inadequate direction) to jury to decide the negligence was so 'gross'(hence , qualifying the label 'criminal '). The complexity and subtlety of this aspect indeed posed a difficult challenge to jurors .

    Where should the buck stop?Doctors ,medical error ,and the justice system
    BMJ. 26/11/2016

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  • "I should have thought that if a doctor did his or her best ... they should not be prosecuted"

    I think we are seeing many gaps between what should be done and what is being done.

    I certainly sleep better having left and I was becoming very defensive in my approach over the last yr of my GP work.
    I see that this approach will correctly increase unless the powers that be recognize the fragility of a consultation.

    Unfortunately much of the nonsense of the 5yr forward view is predicated on reducing referrals and allowing GP's to take on the cost burden by taking on greater risks.

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  • I had one case go to an ombudsman, when a family complained about everyone involved in their son's care when he was dying with terminal cancer.

    As it happened I actually went out on a limb to give him really quick exceptional treatment as I had heard about his case beforehand at a meeting. I arranged for a special pain specialist nurse and he was whisked to the ward swiftly.

    This was proved by my written records and the nurses records and the ombudsman found there was absolutely no case against me.

    However their extreme grief reaction which lead to multiple unfair complaints left me with a very bad taste. At this point I deceided clinical medicine was not for me as even my very best was apparently still not good enough for some.

    That was over 25 years ago. Now with the possibility of criminal litigation against doctors for cases where they may be just doing the best they can, I would recommend students think twice before working as doctors in this country.

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  • New Zealand have the right idea on this. Everyone pays into a central pot which pays for the care of people who suffer from the results of treatment, but on the condition that you then can't sue. Please, lets take a similarly bold and pragmatic approach.

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  • @PaulBunting "I should have thought that if a doctor did his or her best for a patient with up to date clinical evidence and guidelines, they should not be prosecuted."

    Seems to me that misses the point. Of course a doctor shouldn't be imprisoned if they acted in accordance with evidence and guidelines. The question is about those inevitable times when a doctor fails to act in accordance with evidence and guidelines.

    Error is inherent in human activity.

    The question is should society take a quality improvement approach or a criminal approach to medical error? Because, make no mistake, the two are incompatible.

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  • Anonymous | GP Partner27 Nov 2016 8:44am

    spot on. The only thing I would add is make sure you investigate or refer anything that is not clear, wait and watch is no longer an option.

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