Bill Madden, National Practice Group Leader-Medical Law, Slater & Gordon - Crossing the Boundaries: From Negligence to Intentional Torts, From Discipline to Crime

Crossing the boundaries: Discipline to Crime

Clear since 1770…

“Wrongs are divisible into two sorts or species: private

wrongs and public wrongs. The former are an infringement

or privation of the private or civil rights belonging to

individuals, considered as individuals; and are thereupon

frequently termed civil injuries: the latter are a breach and

violation of public rights and duties, which affect the whole

community, considered as a community; and are

distinguished by the harsher appellation of crimes and

misdemeanours.” Blackstone, Commentaries on the Laws of England, 1765 – 1769.

Bill Madden

Slater & Gordon

March 2014

Overarching consistent theory.

Pending…

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Discipline: 3 elements

Unsatisfactory conduct; Misconduct

National Law NSW

Part 8

Performance

Health

Conduct

Unsatisfactoryprofessionalconduct

….includes conduct that demonstrates

the knowledge, skill or judgment possessed

or care exercised

by the practitioner

in the practice of the practitioner’s profession

is significantly below the standard reasonablyexpected of a practitioner

of an equivalent level of training or experience

s 139B, Health Practitioner Regulation National Law (NSW) No 86a

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Professional misconduct

….unsatisfactory professional conduct

of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration;

or

more than one instance of unsatisfactory professional conduct that, when the instances are considered together,

amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration

s 139E, Health Practitioner Regulation National Law (NSW) No 86a

s 139B, Health Practitioner Regulation National Law (NSW) No 86a

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Crime

“Crime”

Crimes Act,

Other Acts.

Performance

Intent

Reckless

Specific criminal provision re medical

CRIMINAL CODE (QLD) - SECT 282

282 Surgical operations and medical treatment

(1) A person is not criminally responsible for performing or providing, in good faith and with reasonable care and skill, a surgical operation on or medical treatment of—

(a) a person or an unborn child for the patient's benefit; or

(b) a person or an unborn child to preserve the mother's life;

if performing the operation or providing the medical treatment is reasonable, having regard to the patient's state at the time and to all the circumstances of the case

Specific criminal provision re medical

CRIMINAL CODE (QLD) - SECT 284

284 Consent to death immaterial

Consent by a person to the causing of the person's own death does not affect the criminal responsibility of any person by whom such death is caused.

Specific criminal provision re medical

CRIMINAL CODE - SECT 288

288 Duty of persons doing dangerous acts

It is the duty of every person who, except in a case ofnecessity, undertakes to administer surgical or medicaltreatment to any other person, or to do any otherlawful act which is or may be dangerous to human lifeor health, to have reasonable skill and to usereasonable care in doing such act, and the person isheld to have caused any consequences which result tothe life or health of any person by reason of anyomission to observe or perform that duty.

Differences-Crime, Discipline,Tort

1 Explicit

provisions

2 Burden of proof

3 Outcome

Purpose:Discipline

Disciplinary

The primary purpose of disciplinary procedures remains the protection of the public; that has been recognized for many years:

Clyne v NSW Bar Association [1960] HCA 40; (1980) 104 CLR 186)

The jurisdiction exercised by this Tribunal is protective, not punitive.

HCCC v Litchfield (1997) 41 NSWLR 630 ; HCCC v Gillett [2007] NSWNMT 7.

Other relevant considerations include the need to maintain high professional standards and to deter others from engaging in similar conduct:

Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630; NSW Bar Association v Meakes [2006] NSWCA 340.

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Purpose:Crime

Crime

“One of the main functions of criminal law is to identifyand to provide punitive sanctions for, behaviour that …is damaging to the good order of society…”

Lord Scott, Ashley [2008] 1 AC 962

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Focus differences

Crime – the public & the wrongdoer

Discipline – the public

Tort –the individual’s rights

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Earlier examples

Valentine 1846; medication error

Pearce 2000 – conviction, manslaughter child (overdose)

Reimers 2001– acquitted of manslaughter (drugs)

Gow 2006 – plea of guilty to manslaughter (overdose)

Sood 2006 – manslaughter - abortion, acquitted

Recent examples

Peters – GBH – HCV Infection

Reeves – Assault, absent consent

Patel – Abandoned after appeal / rehearing

Istephan - dental, 2 yr suspended

Tan – sexual assault, 3 yrs (less with parole)

Case exampleGuilty plea

Peters

55 charges of negligently causing serious injury.

“On 55 occasions you injected yourself with Fentanyl using the same syringe that was subsequently used to supply Fentanyl to your patients”; (aware of HCV condition).

“Your conduct fell so greatly short of the standard of care expected of the reasonable anaesthetist and involved such a high risk of serious injury that punishment under thecriminal law is merited.” (at [3])

Sentence 14 years with non parole 10 years, not altered on appeal.

Peters v The Queen

[2013] VSCA 222

A draft analysis –which areas cause concern?

• Criminal negligence

• Intent – eg Shipman.

• Medical practice provides a means

• Access to drugs

• Indecent contact

• Vulnerable persons

• Aware no consent, or reckless

• Defendant happens to be a doctor.

IdentityTreatment

Consent

Treatment Error /

Assault

Opportunity

Discussion

Pure mistakes about consent (eg wrong patient / wrong procedure)- when will these be a crime?

Awareness ? Recklessness?

What distinguished Istephan from Phung?

What characterised Reeves?

What characterised Peters?

Why did Patel fail?

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Features leading to prosecution?

Clear intent

Death

Drugs

Multiple patients affected

Reassurance

Competent and careful investigation

Consideration of context of care

Appropriate expert evidence

Attention to the burden of proof

Extensions Perpetrator Supervisor / Manager

Berwick report 2013

We do not need to recite the details of the tragedy of Mid‐Staffordshire in this report….the story is now indelibly part of the history of the NHS in England….the point now is to move on.

RECOMMENDATION 10

We believe that legal sanctions in the very rare cases where individuals or organisations are unequivocally guilty of wilful or reckless neglect or mistreatment of patients would provide deterrence whilst not impeding a vital open, transparent learning culture. Our proposals aim to place wilful or reckless neglect or mistreatment of all NHS patients on a par with the offence that currently applies to vulnerable people under the Mental Capacity Act.

Berwick report 2013

…We do not support the punishment of organisational leaders, Boards and chief executives, or others for poor performance that occurs for reasons beyond their control.

We do recommend penalties for leaders who have acted wilfully, recklessly, or with a “couldn’t care less” attitude and whose behaviour causes avoidable death or serious harm, or who deliberately withhold information or provide misleading information. (page 33)

Argument in favour of criminal option

Avoids requirement for ‘damage’, where appropriate

Access to stronger sanctions for more extreme cases, shifting the focus away from protective orders

Societal expectations

Application to organisations as well as individuals

Rarely needed, but necessary.

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References

J Bibby, Would criminalising healthcare professionals for wilful neglect improve patient care? BMJ 2014; 348:g 133.

R Duff, Torts, Crimes and vindication: Whose wrong is it? Research paper 14-07, University of Minnesota Law School.

D Griffiths & A Sanders, Bioethics, Medicine and the Criminal Law, volume 2, Medicine Crime & Society, 2013, Cambridge.

R Leflar, The Law of Medical Misadventure in Japan, Chicago-Kent Law Review: Vol. 87: Iss. 1, Article 5.

R Stevens, Private Rights and Public Wrongs (January 30, 2014). book of essays edited by Matthew Dyson, "Unraveling Tort and Crime", Forthcoming. Available at SSRN: http://ssrn.com/abstract=2388072

Peters v The Queen [2013] VSCA 222