Workload pressure would not be a defence against clinical negligence, barrister warns

Authors: Abi Rimmer 

Publication date:  25 Apr 2017

Judges considering gross negligence manslaughter prosecutions against doctors would not view a lack of NHS resources as a defence against clinical negligence, a barrister who specialises in medical law and clinical negligence has said.

At a conference on litigation against doctors at the Royal Society of Medicine last week, James Badenoch QC said that he was often asked whether judges would take into account “the impossible conditions in which some doctors work.”

“The answer, to be relatively frank with you, is no,” he said. “We’ve often had discussions about whether financial constraints might be a defence against what otherwise might be called negligent failure to treat. And we have to conclude that, as yet, it would not.”

He added, “I don’t think that the limitations of finance, of staffing, of equipment, and the dreadful conditions that sometimes people in the NHS are working in has yet been considered a defence to negligent behaviour or treatment.”

Ian Barker, senior solicitor at the Medical Defence Union, said, “Should extra pressures and the impossible tasks you are being asked to do be relevant, and should that play a part in terms of culpability—yes. The Adomako ruling says that you look at all the circumstances of the case and that means you look at those pressures.”

Robert Francis, who led the public inquiry into failings at Mid Staffordshire NHS Foundation Trust, spoke to BMJ Careers about this issue. He said that, despite increasing financial pressures on the NHS, he did not expect there to be an increase in gross negligence manslaughter prosecutions against doctors. “That’s not to deny the financial pressures,” he said. “And that’s not to deny that those pressures may lead to less safe practice than has otherwise been the case.”

He added, “I would like to think that prosecutors and courts will take into account the environment in which the doctor works in order to understand whether what happened is ‘gross’ or not. From what we have heard today it is probably time that the definition of manslaughter is looked at again because I’m not sure, in the context of medical cases, it’s satisfactory.”

Francis said that doctors and hospitals needed to do the best that they could for their patients with the resources available to them. “That may not be enough but, obviously, you do your best. What your best is when you have fewer resources must be different from what your best is if you have every resource. I would hope that it does not lead to an increase in cases, they are very rare as an event.”

He added, “There will be much greater public discontent with the service received and that will lead to issues that are difficult to confront.”

Abi Rimmer BMJ Careers

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