Criminal Justice and Courts Bill

Baroness Barker Excerpts

Monday 14th July 2014 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, Clause 17 creates a new offence of ill treatment or wilful neglect that is likely to result in hundreds of additional criminal investigations of healthcare professionals, including doctors. The problem is that Clause 17 does not indicate a threshold for the offence against the individual care worker. The Medical Defence Union, which has 128 years’ experience defending healthcare professionals, the Royal College of Physicians, of which I declare that I am a fellow, the BMA, of which I am president, and the Foundation Trust Network are all concerned about this. There is a concern that the police would have little option but to investigate any doctor accused of ill treatment or wilful neglect, even in those cases where charges or prosecution might appear unlikely.

The Department of Health’s consultation that preceded the proposal for the new offence suggested that it would apply only where the alleged crime was so severe that it would merit a criminal sanction over and above any action taken by a regulator, such as the General Medical Council for doctors. The Department of Health has consistently suggested that only the more serious instances of such ill treatment or neglect would give rise to the prosecution of care workers. My concern is that this is not clear in the way in which Clause 17 is worded.

Clause 18 would create a similar offence for organisations providing care. It specifies that for the offence to apply the,

“provider’s activities are managed or organised in a way”,

that means there is,

“a gross breach of … duty of care”,

that the provider owes to the individual. Clause 18 appears to envisage the offence applying only where the conduct alleged falls far below what can reasonably be expected of the care provider, so there is a threshold.

These specifications appear absent from Clause 17. The practical effect of the difference between the two clauses is that the threshold for an organisation is far higher than that for the individual worker. It is of particular concern for doctors because, if allegations of ill treatment or wilful neglect are made to the police, it is very likely that, in the absence of Clause 17 specifying a higher threshold, there would be very little option but to investigate.

If, as the Department of Health suggests, the aim is to prosecute only the most serious cases, the threshold in Clause 17 should indicate where the proper level of criminality lies. To achieve that, the amendment suggests that a threshold similar to that of Clause 18 is built into Clause 17. In addition to the offence applying where there is ill treatment or wilful neglect, it should be necessary for that to represent a gross breach of the care worker’s duty of care to the individual.

Let me illustrate that with a fictional scenario, although it is based on a realistic type of incident that could easily happen and could give rise to such allegations. A patient is terminally ill and becoming restless. The doctor intends to prescribe a dose of pain relief for breakthrough pain and something for the restlessness, and the family knows that. However, the doctor is suddenly called away to a young man who is in a peri-arrest situation. He was admitted as an emergency with suspected meningitis. The doctor is then called to resuscitate another patient in an adjacent bed. That resuscitation is successful, so she is there for much longer than she would have been if it had been unsuccessful. By then, the results have come back on the man who has been confirmed as having meningitis and she is involved in instigating life-saving treatment. She then rushes back to the ward to find that the terminally ill patient has died without having received the additional analgesia or drugs for agitation that she had intended to prescribe at the point at which she was called away.

The family, understandably distraught, contact the police and allege that the doctor wilfully neglected their mother. As well as the hospital inquiry and a GMC referral, the police then have to investigate the doctor for wilful neglect. If that doctor is then suspended because there is an ongoing investigation, which could take up to six months, the hospital will have to employ a locum. Even if the police conclude that the investigation is not founded and do not bring any charges, the GMC concludes that there are no grounds for referral for fitness to practise and the hospital exonerates the doctor, that doctor has been out of the workforce during the investigation. She may be so seriously damaged by having tried to do her job to the best of her ability but appearing to fail, she may well think twice about continuing in medicine. We know that that is a problem now with some young doctors who find the stresses so great that they are opting out.

Throughout England and Wales there is a prosecutorial discretion, and if a new criminal sanction of wilful neglect is introduced without any indication of the threshold at which it should apply to individual practitioners, it is worrying. I suspect that scenarios not dissimilar to the case that I have described will happen, and not infrequently. They will principally affect both doctors and nurses. If the intention is that the sanction should be applied only in the severest of cases, and I believe that that is what the Department of Health intends, that should be clear in legislation. If it is not, another unintended consequence is that it could jeopardise transparency and candour, which goes in absolutely the opposite direction to the policy intention.

There are other amendments in this group which I support and will speak to only briefly. The inclusion of volunteer work is important because there are an increasing number of doctors who have retired and who are working as volunteers with groups such as asylum seekers and refugees. In fact, they have another problem already because they do not get tax relief against their NHS pensions for this completely voluntary work, even though they have to pay their GMC registration and maintain their defence union subscription. They are quite severely out of pocket to the tune of many hundreds of pounds for what you could say was the pleasure—indeed, they do it out of vocation and for job satisfaction—of working as volunteers with these very hard-to-reach and deprived people who are in difficult situations. They are often dealing with victims of torture. These doctors are not doing easy work as volunteers.

The other amendment in this group makes it clear that the concept of clinical judgment should be included. That becomes extremely important. There is a lot of guidance now within clinical practice, but it is only that: it is guidance and not as firm as a lot of people think. It is often based on the best research evidence available, but in every case it has to be interpreted for the individual. At the end of the day, it comes down to considered clinical opinion. One would hope that every doctor weighs things carefully in the balance and comes to a considered conclusion about what they are doing, but it would be damaging to patient care if that interpretation of guidance were jeopardised and there was a formulaic approach to the management of patients by imposing a risk-averse approach. We have seen the dangers already when you end up with a protocol-driven approach rather than an interpretation of guidance. We saw disasters with the Liverpool care pathway, which was well intentioned but poorly rolled out and so forth. I hope that the Government will also accept that concept of clinical judgment. I beg to move.

[Baroness Barker (LD)]

My Lords, very rarely for me, I want to disagree with the noble Baroness, Lady Finlay. We usually bat on the same side, but not tonight. My reason for disagreeing is quite simply that these provisions in the Bill have come about because of the considerable amount of work done by my colleague Paul Burstow. He came up with these proposals in consultation with people who had been well and truly at the coalface of the investigations into Mid Staffs and Winterbourne View. They have not been drawn up lightly.

I disagree with the starting point of the case that the noble Baroness put forward. She said that these provisions will inevitably lead to hundreds of investigations of doctors. However, that will only be if there is reason to investigate. Her amendment would severely undermine the deterrent effect of this legislation. The first part of Clause 17 says:

“It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual”.

That is a very powerful statement, and some of us are already beginning to be involved in training people within the health and social care field. We are already beginning to discuss the issues with people who run charities, asking them whether they know that this piece of legislation is coming along. It is beginning to have quite a profound effect on people about what they are supposed to do.

I have to take issue with the noble Baroness’s amendment where it goes on to add another three lines to the end of that subsection and to introduce two tests. First, it says somebody has to act,

“in a way that amounts to a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”.

I can understand that, although I am not exactly sure what it adds. However, the bit that I really find wrong is where it adds,

“and causes the avoidable death of, or serious harm to, that individual”.

One of the reasons Paul Burstow drafted his proposals as he did was the recognition that it is very rare for any health or social care provider suddenly to become a dreadfully malevolent or neglectful place. Usually, when there is bad practice, it is the accretion of pressure, slipping standards and lack of good management that bit by bit builds up to the point where people are unsafe. Part of the reason for framing this as it is was to tackle that sort of stuff, which can be devastating in its own way. We are talking not just about the physical health of people but their mental health. It was to cover that as well.

I will simply say to the noble Baroness that I understand where she is coming from and the bodies whose views she is representing to us. There is already a great deal of legislation under which members of the medical profession can find themselves the subject of an inquiry for misconduct; that really will not change. Although her amendment in particular—there are others in this group—would not fatally undermine this clause, it would put a huge dent in it and introduce a fair amount of, dare I say it, wriggle room for medical defence lawyers to get somebody off the hook. I may be wrong, and she may be proved right, but on balance what this clause does as written is to plug the gap that there has certainly been in social care, if not in the NHS, whereby front-line workers carried the can and those who were in positions of trust and oversight walked away when they should not have done. On balance, I do not accept her argument. No doubt the Minister will reply to it.

[Baroness Finlay of Llandaff]

Perhaps I might clarify. I certainly agree that mental harm is as serious as physical harm. I do not differentiate between the two. The problem is that there seems to be a different threshold between the two clauses, and I did not hear anything in what the noble Baroness said to point out that there was the same threshold between the two clauses. My concern is that, in the example I gave, the junior doctor would be the one who would take the rap. The organisation may have been disorganised and overstressed its staff and expected them to work unrealistically, but its threshold is set differently, and that is my concern.

[Baroness Barker]

That is exactly the point that Paul Burstow was trying to cover. If you back into that, I think you will find that the fears the noble Baroness is raising are addressed by looking at all of this section in totality.

[Lord Beecham]

My Lords, I will briefly mention Amendment 33, which I tabled in the light of representations from the Medical Protection Society over a range of issues. It struck me in particular that it was important to offer protection to registered medical practitioners who are exercising their clinical judgment, as opposed to other matters that they might, as it were, stray into. But where it is a matter of clinical judgment, that should surely be a defence which would displace the possibility of a prosecution for the range of offences set out in Clauses 17 to 22. I hope the Minister—I take it that it will be the noble Earl, Lord Howe, who will be dealing with this—will agree that it is important to protect clinical judgment in that way and that this amendment will be acceptable to the Government.