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Medicolegal issues that are hot in Britain
Richard SmithEditor, BMJ
www.bmj.com/talks
What I’m going to talk about
• Skim across many hot legal issues• More on the criminalisation of
medical error and the human tissues bill
Hot issues
• Making smoking illegal in workplaces, including pubs and restaurants– Has happened now in Ireland as well as some
American cities– Resisted in England– Recent evidence in the BMJ that hospital
admissions for acute myocardial infarction reduced after the introduction of a public smoking ban in Helena, Montana
Hot issues
• European working time directive– Junior doctors must work an average 58 hour week
by August 2004 falling to 48 hours by 2009
– Working time includes time on call but asleep
– Equivalent to the UK losing 3700 junior doctors
– Small hospitals may have to close
– Radical solutions needed (and found in some places)
– Surgeons don’t like it--can you ever get properly trained?
Hot issues
• BMA guilty of institutional racism– fined almost £1m for failing a member– a complicated case, but in essence the BMA had
a policy of helping members in disputes with their employers but not with the colleges of specialist training authority--and it is doctors from ethnic minorities who are most likely to have such problems
– a way to understand institutional racism: appointing people from within rather than advertising externally
Hot issues
• European convention on human rights– Comes into many subjects: informed consent, end of
life issues
• New system for coroners and verifying death– Follows on from Shipman
– Reforms to the coroner system will result in a change in the number of coroners from 127 full and part timers to between 40 and 60 full timers, all legally qualified
Hot issues
– Each coroner's area will have a medical examiner, who will play a key role in verifying the cause of deaths.
– Death is verified by a doctor, paramedic, or senior nurse, who then completes a verification form
– Last doctor to treat the patient certifies the cause
– Medical examiner seeks further information from families and others before allowing disposal of the body
Hot issues
• Convictions for child abuse– Convictions of three mothers accused of
murdering their children overturned– 0ther cases being reviewed– doubt cast on the diagnosis of Munchausen’s-by-
proxy and the shaken baby syndrome– doctors concerned with child protection under
great pressure; increasingly hard to find people to do such work
– cases might be dealt with outside the criminal justice system
Hot issues
• “Making amends” for those injured in the NHS--avoiding negligence– the problem are high costs; money ends up with
lawyers not patients; very slow system; gets in the way of improvement
– Covers all adverse events (850 000) investigated not just complaints (33 000) or potential cases of litigation (7000)
– Clinicians have a duty to notify patients of such events
Hot issues
– Limited compensation would be available through an expert panel in smaller cases--not a no fault scheme
– Cases are unintended damage during surgery (34%), procedure not properly carried out (18%), unnecessary operation (10%), infection (12%)
– a no fault scheme would cover neurological injury from birth
– is the problem that bad (lawyers ask): costs 1% of the NHS bill; number of cases falling
Hot issues
• Late abortion as murder– A police investigation is to begin into the
late abortion of an unborn child with a cleft lip and palate
– A curate who herself has a cleft lip and palate challenged the original police decision not to prosecute--and won
Hot issues
• Over-ruling of “lenient” decisions by the GMC– Commission on Regulation of the Health
Professionals set up to challenge sentences by the GMC and other regulatory bodies that are seen as too lenient
– Many challenges in the pipeline– Have also established that it can challenge
cases where doctors are not found to have committed serious professional misconduct
Hottest issues: the criminalisation of fatal medical mistakes
• Has become much commoner--although a falling rate of conviction
• A decision taken by the Public Prosecution Service in the early 1990s
A celebrated case
• Consultant urologist John Roberts and locum registrar Mahesh Goel were charged
in 2002 with manslaughter after Goel removed a patient's healthy kidney by mistake instead of the diseased one
• They were acquitted on the direction of the judge after a prosecution pathologist said
he could not be sure of the cause of death
Second celebrated case
• Feda Mulhem was three days into his first post as a specialist registrar in haematology when he told a junior doctor to inject a drug into the spine of a young patient with leukaemia
• He’d mistaken the drug
• The patient died
• Mulhem was given a custodial sentence
of eight months
Hottest issues: the criminalisation of fatal medical mistakes
• Is it sensible to use the criminal law to prosecute these doctors?
• They have no intention of injuring the patient
• They are “human beings”• Errors are recognised mostly to be the
failure of systems not individuals• Punishing the individual may divert
attention from fixing the system
Hottest issues: the criminalisation of fatal medical mistakes
• Indeed, the first step in reducing errors is to encourage doctors to report them
• The law is working against the public interest
• But there has been a change of attitude
Hottest issues: the criminalisation of fatal medical mistakes
• 19th century attitude: ”If there was only the kind of forgetfulness which is common to everybody, or if there was a slight want of skill... it would be wrong to proceed against a man criminally in respect of such injury"
• It might be right if a surgeon were to operate while drunk
• But now there is less tolerance of human failings
• The BMJ may ironically have encouraged this attitude by banning the word “accident”
Hottest issues: human tissues act
• Response to the discovery--particularly at Alder Hey Hospital in Liverpool--that pathologists had kept huge numbers of specimens from children and others without consent
• The new bill says that using any material containing human cells (including sputum and urine) for research or for training not "incidental to the diagnostic process" will be a criminal offence unless "appropriate” and explicit consent has been obtained
Hottest issues: human tissues act
• Punitive criminal sanctions coupled with opaque legislation threaten ethical and essential research as well as routine NHS activities
• Patients are not much bothered about specimens removed from them--cf, post mortem material
• Consent will be needed for all specimens because it’s hard to know which will be useful
Hottest issues: human tissues act
• But attempts at getting consent routinely have foundered through bureaucracy
• 150 million specimens are taken each year in England and Wales--one minute to get consent means another 1300 jobs
• An alternative might be to use ethics committees or get blanket consent on booking
Conclusion
• “The law is like sausages. Those who admire them should avoid watching them being made.”