Q&A: Wilful neglect
Dr Michael Devlin from the MDU explains what wilful neglect is, and gives of examples of how the prosecution of this crime might work if created
GPs could be investigated by the police if a new criminal offence of wilful neglect is introduced. The MDU is objecting to a consultation on proposals which we believe are not necessary for public protection. They would also add to the regulatory burden faced by the profession and cause unnecessary distress for those caught up in any investigation.
Here, Dr Michael Devlin, Head of Professional Standards and Liaison at the MDU, answers questions from GPs about the potential ramifications.
Q. What is the definition of wilful neglect?
The Government is still consulting on the creation of a new criminal offence of ‘wilful or reckless neglect or mistreatment’ in England and Wales, so we don’t have a working definition yet. 1
The recommendation for the new offence was originally proposed by Professor Don Berwick in his report on a review of patient safety in the NHS following the Francis report into Mid Staffordshire hospital. 2 The offence would apply to individuals and organisations who wilfully neglect or ill-treat someone in a way that causes serious harm or death. The consultation document does not propose a definition as it suggests there is already a widely agreed definition in case law.
The MDU does not believe case law and its application are clear and is concerned that the lack of clarity is likely to lead to a number of unnecessary investigations of doctors. This could mean some GPs facing an unnecessary criminal investigation, with serious implications for their career and professional reputation.
Q. What will the penalties be?
It’s proposed that any healthcare professional successfully prosecuted could face up to five years imprisonment and/or £5,000 in fines under the proposals. The organisations employing them could also face large financial penalties.
Q. What are the ways in which doctors could currently be held to account for neglecting a patient?
There are already criminal and other sanctions in place. Criminal offences exist currently in order to protect vulnerable groups in society, such as those with mental health illnesses, those who lack capacity to make decisions for themselves and children. However, there is no evidence to suggest doctors are wilfully neglecting or ill-treating patients or that the additional threat of a police investigation is necessary or likely to improve patient safety.
Currently a doctor accused of ill-treatment or wilful neglect would most likely be investigated by the GMC and could face a fitness to practise hearing, with the ultimate sanction of erasure from the medical register. Given this would effectively stop that doctor from practising medicine, it is hard to see why a new, additional criminal sanction is considered necessary or likely to be a more effective deterrent than erasure from the medical register. The danger is it will encourage a culture of fear and blame, rather than of learning and openness.
Q. How might GPs fall foul of this law? Can you give some examples?
One example might be a GP who sees a five-year-old boy with a high temperature and lethargy. After careful examination, the doctor can find nothing of concern and suspects a viral illness, advises the parents accordingly, and tells them to keep an eye on the child and to contact the surgery again if his condition worsens. That child is admitted to hospital 10 hours later with meningitis and suffers brain damage.
The (understandably distressed) parents might approach the police and seek to blame the GP for not having picked up the meningitis, alleging the GP was rushed and off-hand and did not care whether the child was in need of medical treatment or not.
Another example might be an elderly patient in a care home who is frail and starts to lose weight. Her GP, after carrying out a clinical examination, recommends that further investigations and a hospital referral. The patient, who is competent and able to make decisions, does not wish either to undergo any investigations or be referred to hospital and over the course of several months becomes increasingly frail. The relatives of the patient, seeing her progressive physical deterioration, believe those providing care have neglected her medical condition, and complain to the police. Again, this situation would put the GP at risk of criminal investigation because of the clinical, professional relationship with his patient, and would also be likely to last for considerable time given that other healthcare professionals might be interviewed by the police.
If this new legislation is brought in, this could lead to a police investigation for ‘wilful neglect’. Even if the police finally reached the conclusion that the GP behaved properly and did not in any way neglect the patient, that would hardly be any comfort to the GP.
A new criminal sanction for wilful neglect is likely to increase the numbers of GPs investigated though very few, if any, would be found guilty of something as serious as wilful neglect. Such investigations last many months, if not years, even if ultimately no sanction is imposed and it is difficult to see how this would act as a deterrent or further protect patients.
Q. What can GPs do to object to the creation of this offence?
GPs can make their views known to the Government via the consultation which closes at 5pm on 31 March. The consultation documentation and explanation on how to respond can be accessed on the Government’s website.
Dr Michael Devlin is the head of professional standards and liaison at the MDU.
1 Department of Health. New offence of ill treatment or wilful neglect: consultation document. 27 February 2014.https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/285426/20140226_WN_consultation_doc_-_For_publication.pdf
2 Department of Health. Berwick review into patient safety. 6 August 2013.https://www.gov.uk/government/publications/berwick-review-into-patient-safety