Medicolegal issues that are hot in Britain

1. Medicolegal issues that are hot in Britain Richard Smith Editor, BMJ www.bmj.com/talks

2. 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

3. 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

4. Hot issues • European working time directive • Junior doctors must work an average 58 hour week byAugust 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?

5. 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

6. 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 coronersystem will result in a change in the number of coroners from127 full and part timers to between 40 and 60 full timers, alllegally qualified

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

15. A celebrated case • Consultant urologist John Roberts and locum registrar Mahesh Goel were chargedin 2002with manslaughter after Goel removed a patient's healthy kidneyby mistake instead of the diseased one • They were acquitted onthe direction of the judge after a prosecution pathologist saidhe could not be sure of the cause ofdeath

16. Second celebrated case • Feda Mulhem was three days into hisfirst 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 sentenceof eight months

17. 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

18. 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

19. Hottest issues: the criminalisation of fatal medical mistakes • 19th century attitude: ”If there was only the kind of forgetfulness which is commonto everybody, or if there was a slight want of skill... it wouldbe wrong to proceed against a man criminally in respect of suchinjury" • 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”

20. 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 tothe diagnostic process" will be a criminal offence unless "appropriate” and explicitconsent has been obtained

21. Hottest issues: human tissues act • Punitive criminal sanctions coupled with opaquelegislation threaten ethical and essential research as wellas 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

22. 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

23. Conclusion • “The law is like sausages. Those who admire them should avoid watching them being made.”