Extending the scope of wilful neglect will result in paternalistic nursing care Richard Griffith
Key words: Wilful neglect ■ Patient safety ■ Poor care ■ Public confidence in nursing
T
he Berwick report on improving patient safety in the NHS in England has recommended that poor care resulting from wilful or reckless neglect or treatment should be subject to criminal sanctions (National Advisory Group on the Safety of Patients in England, 2013). This call to criminalise wilful neglect for all patient groups echoes the view of the Robert Francis QC, who conducted the official inquiry into Mid Staffordshire NHS Trust, that more criminal sanctions should be available to prosecute poor care (Mason, 2013) The Government is currently considering the recommendations of the Berwick report but does seem minded to use the criminal law to improve public confidence in nursing. Such a move is likely to result in the courts being asked to second guess clinical judgement and will result in nurses being more paternalistic in delivering care.
Wilful neglect The offence of wilful neglect is currently available to prosecutors in cases concerning Richard Griffith is Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University
1190
adults who lack decision-making capacity. The Mental Capacity Act 2005, section 44 makes it an offence for a nurse to; ‘Ill-treat or wilfully neglect a person who they reasonably believe lacks capacity.’ The key elements of the offence are that the neglect must be wilful and that the nurse must reasonably believe the person lacked capacity to make decisions. In practice these elements have been difficult to apply in cases and the court of appeal considered the issue on five occasions and still does not have clear guidance on how the elements of the offence should be interpreted in practice.
Decision-making capacity The poor construction of the offence means that nurses are at risk of running a fine line between losing the protection of the Mental Capacity Act 2005 for failing to uphold a patient’s autonomy on the one hand, and being prosecuted for wilfully neglecting a patient for failing to act on the other. In R v Ligaya Nursing [2012] a nurse was charged with wilful neglect under the Mental Capacity Act 2005, section 44 following a police investigation that found a lack of adequate care due to inattention to the patient’s personal hygiene, failing to administer
Neglect must be wilful The Court’s interpretation of the second head of the offence also places nurses at increased risk of prosecution. In R v Patel [2013] a nurse appealed against her conviction for wilfully neglecting a patient contrary to the Mental Capacity Act 2005 s.44. The nurse who was in charge of a nursing home was told by a healthcare assistant that a patient was becoming ill. His breathing was shallow and his pulse was faint. The nurse panicked. She did not immediately telephone for help, but first telephoned the man’s son in America, then dialled 999 and asked for an ambulance; which was duly dispatched. A clinical adviser telephoned back some 5 minutes later to be told that the patient had stopped breathing and died. The nurse had not and would not perform cardiac pulmonary resuscitation (CPR). A post-mortem revealed that the patient had been suffering from pneumonia, which caused respiratory arrest, which in turn caused a cardiac arrest. CPR would have been
© 2013 MA Healthcare Ltd
Abstract
The recommendation that the criminal offence of wilful neglect be extended to protect all patient groups may seem a proactive way for the Government to begin to restore public confidence in nursing following the Mid Staffordshire NHS Trust Inquiry. However, the experience of the courts hearing cases of wilful neglect in relation to adults who lack capacity show that they are complex trials and, despite several appeals, still lack clear guidance that nurses can apply in practice to avoid prosecution while still promoting the autonomy of patients. In this article the author reviews recent cases of wilful neglect to come before the Court of Appeal and argues that rather than offering protection to patients, criminalising a failure to act is more likely to result in paternalistic interventions, with nurses insisting on providing care because they fear prosecution if they fail to do so.
medication correctly and at the right time and failing to provide a balanced diet. The nurse argued that she tried to provide the care but the patient refused to accept her help, and in the circumstances felt it was wrong to override the patient’s wishes. The Court of Appeal acknowledged that people who lacked capacity should be protected from ill treatment and wilful neglect but lamented the difficulty in making out the offence because of the complex nature of the Mental Capacity Act 2005.They acknowledged that capacity was not a blunt all-or-nothing condition but one that was issue-specific, with patients lacking capacity for one decision but retaining it for others. An omission to provide care by a nurse in the belief that it reflects and protects the autonomy of the patient would not be wilful neglect. Unfortunately for nurses making that judgement the Court of Appeal also held that each case would have to be considered on its specific facts, with the real risk of prosecution for those determined to uphold choice and autonomy for vulnerable patients in accordance with the 2005 Act.
British Journal of Nursing, 2013, Vol 22, No 20
British Journal of Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on November 21, 2015. For personal use only. No other uses without permission. . All rights reserved.
LEGAL unlikely to have saved the patient. The Court of Appeal held that the nurse had been properly convicted of wilful neglect under the Mental Capacity Act 2005, section 44. Neglect occurs where a nurse fails to do that which ought to be done in the treatment of a patient. The Court of Appeal further held that it was no defence to say a nurse failed to act because of panic or stress. For the neglect to be wilful it must be shown that the nurse knew it was necessary to administer treatment but deliberately decided not to do so because they could not face it. This interpretation of wilful neglect by the Court of Appeal is likely to result in nurses adopting a more paternalistic approach to their interventions and insisting on providing treatment that is unnecessary or futile because a failure to act might result in prosecution. In R v Patel [2013] the futility of CPR in that patient’s case was held not to be a defence to wilful neglect. It is enough for the prosecution to show that a nurse deliberately failed to carry out treatment that they ought to have carried out, regardless of its outcome, in order to secure a conviction.
Key points n The Berwick report recommends that poor care resulting from wilful or reckless neglect or treatment be subject to criminal sanctions n Under the Mental Capacity Act 2005 neglect occurs where a nurse fails to do that which ought to be done in the treatment of a patient n Neglect is wilful if the nurse knew it was necessary to administer treatment but deliberately decided not to do so because he or she ‘could not face it’ n The emphasis on each case turning on its individual facts and the absence of clear principles that set out what is expected of nurses to avoid prosecution is likely to result in paternalistic nursing that is contrary to patients’ wishes
subsequently died of toxic shock. The judge held that, ‘A health professional would be told that grossly negligent treatment which exposed a patient to the risk of death, and caused it, would constitute manslaughter.’ The doctors each received a suspended jail term of 14 months. Two nurses were convicted of the manslaughter of a patient at a nursing home through gross neglect. The patient died from septicaemia resulting from pressure sores the size of a fist that developed while she was a resident at the nursing home. The sores had penetrated to the bone and the court heard that the smell of rotting flesh was so great they had to move the patient to a different bed away from other patients. The nurses were sentenced to 1 year in prison (R v Latham & Campbell (2003)).
Gross negligence Where a deliberate failure to provide treatment contributed to the death of a patient, a nurse would face the more serious charge of gross negligence manslaughter (R v Patel [2013]). In R v Bateman [1925] the court held that gross negligence occurs when someone shows such disregard for the life and safety of other persons as to constitute a crime worthy of punishment. In health care the issue of gross negligence arose in R v Misra & Srivastava [2004] where two doctors were found guilty of gross negligence when they failed to heed the warnings to call for senior assistance because a patient was seriously ill. The patient
Conclusion The Government has been urged by the Berwick report into patient safety to extend the criminal offence of wilful neglect to encompass all patient groups. Such an action
is unlikely to result in improved protection for patients. Prosecutions under the offence currently available in the Mental Capacity Act 2005 have been complex to prosecute with courts being asked to objectively analyse the clinical decision making of nurses in each case. The emphasis on each case turning on its individual facts and the absence of clear principles that set out what is expected of nurses to avoid prosecution is likely to result in paternalistic nursing that is contrary to the wishes, feeling and beliefs of patients as nurses insist on providing care for fear of being BJN prosecuted if they fail to do so. Conflict of interest: none Mason R (2013) ‘NHS staff could be prosecuted for wilful neglect or manslaughter, says Francis’. The Telegraph,12th February. http://tinyurl.com/nehzq4u (accessed 31 October 2013) National Advisory Group on the Safety of Patients in England (2013) A promise to learn - a committment to act: Improving the safety of patients in England. Department of Health, London. http://tinyurl.com/ q6a7zkh (accessed 30 October 2013) R v Ligaya Nursing [2012] EWCA Crim 2521 R v Patel [2013] EWCA Crim 965 R v Bateman [1925] Cr. App R. 8 R v Misra & Srivastava [2004] EWCA Crim 2375 R v Latham & Campbell (2003) (Isle of Man High Court: 27th October)
About the book
© 2013 MA Healthcare Ltd
n
Illustrates how reflective practice can fulfil a need for all health care professionals to make sense of their clinical experience Discusses the clinical implications of the principles and processes associated with reflective practice
n n
Represents a variety of models and classifies and critiques them
The book is designed to assist health care professionals to develop the art of learning from reflective practice. Journal writing and analysis of critical incidents are two ways to facilitate reflection. Specifically they relate to the art of reflection-on-action . The book is divided into three broad sections to do with ‘context’, ‘learning processes’ and ‘outcomes’. In Part 1: Context, the genesis, goals and interests of reflective practice are set out. Part 2: Process describes and justifies journal writing and critical incident analysis as two ways to learn from reflection-on-action. Finally, in Part 3: Outcomes the implications for clinical practice that arise from reflecting-on-action through journal writing and critical incident analysis are examined.
Includes practical suggestions along with discussion of their advantages and limitations This book is intended to support health care professionals in becoming more personally and publicly accountable by helping them to reflect upon what may well be perceived as competent and skilful clinical action. Through the more generic process of reflective practice and the more specific and related approaches of journal writing and critical incident analysis, we hope that health care professionals may be able to make even more sense of their clinical worlds by additionally inquiring into, and understanding more richly, that which is often implicit in everyday practice.
ISBN-13: 978-1-85642-248-2; ISBN-10: 1-85642-248-8; 234 x 156 mm; paperback; 260 pages; publication About the authors 2008; £24.99 Tony Ghaye is C.E.O. of the Institute of Reflective Practice-UK, Professor in Educare, Visiting Professor at the Universities of Lulea, Sweden, Wales-NEWI and Senior International Consultant at Beijing-Geely University, China.
Order your copies by visiting
www.quaybooks.co.uk
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Critiquing Nursing Research 2nd Edition Effective Clinical Supervision Empowerment through Reflection Reflection: Principles and practice for health care professionals
by Tony Ghaye and Sue Lillyman
British Journal of Nursing, 2013, Vol 22, No 20
Sue Lillyman is a Senior Lecturer at University of Central England and Affiliated consultant at the institute of Reflective Practice-UK.
or call our Hotline
Learning Journals and Critical Incidents 2nd edition
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This is the 2nd edition of the best selling book Learning Journals and Critical Incidents which has been widely acknowledged for its contribution to the understanding of reflection and reflective practice. This edition has been thoroughly updated to recognise changes and developments in both theory and practice over recent years.
Learning Journals and Critical Incidents Reflective Practice for Health Care Professionals
2nd edition
1191
British Journal of Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on November 21, 2015. For personal use only.byNo without permission. . All rights reserved. Tonyother Ghayeuses and Sue Lillyman www.quaybo oks.co.uk
Key words: Wilful neglect ■ Patient safety ■ Poor care ■ Public confidence in nursing
T
he Berwick report on improving patient safety in the NHS in England has recommended that poor care resulting from wilful or reckless neglect or treatment should be subject to criminal sanctions (National Advisory Group on the Safety of Patients in England, 2013). This call to criminalise wilful neglect for all patient groups echoes the view of the Robert Francis QC, who conducted the official inquiry into Mid Staffordshire NHS Trust, that more criminal sanctions should be available to prosecute poor care (Mason, 2013) The Government is currently considering the recommendations of the Berwick report but does seem minded to use the criminal law to improve public confidence in nursing. Such a move is likely to result in the courts being asked to second guess clinical judgement and will result in nurses being more paternalistic in delivering care.
Wilful neglect The offence of wilful neglect is currently available to prosecutors in cases concerning Richard Griffith is Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University
1190
adults who lack decision-making capacity. The Mental Capacity Act 2005, section 44 makes it an offence for a nurse to; ‘Ill-treat or wilfully neglect a person who they reasonably believe lacks capacity.’ The key elements of the offence are that the neglect must be wilful and that the nurse must reasonably believe the person lacked capacity to make decisions. In practice these elements have been difficult to apply in cases and the court of appeal considered the issue on five occasions and still does not have clear guidance on how the elements of the offence should be interpreted in practice.
Decision-making capacity The poor construction of the offence means that nurses are at risk of running a fine line between losing the protection of the Mental Capacity Act 2005 for failing to uphold a patient’s autonomy on the one hand, and being prosecuted for wilfully neglecting a patient for failing to act on the other. In R v Ligaya Nursing [2012] a nurse was charged with wilful neglect under the Mental Capacity Act 2005, section 44 following a police investigation that found a lack of adequate care due to inattention to the patient’s personal hygiene, failing to administer
Neglect must be wilful The Court’s interpretation of the second head of the offence also places nurses at increased risk of prosecution. In R v Patel [2013] a nurse appealed against her conviction for wilfully neglecting a patient contrary to the Mental Capacity Act 2005 s.44. The nurse who was in charge of a nursing home was told by a healthcare assistant that a patient was becoming ill. His breathing was shallow and his pulse was faint. The nurse panicked. She did not immediately telephone for help, but first telephoned the man’s son in America, then dialled 999 and asked for an ambulance; which was duly dispatched. A clinical adviser telephoned back some 5 minutes later to be told that the patient had stopped breathing and died. The nurse had not and would not perform cardiac pulmonary resuscitation (CPR). A post-mortem revealed that the patient had been suffering from pneumonia, which caused respiratory arrest, which in turn caused a cardiac arrest. CPR would have been
© 2013 MA Healthcare Ltd
Abstract
The recommendation that the criminal offence of wilful neglect be extended to protect all patient groups may seem a proactive way for the Government to begin to restore public confidence in nursing following the Mid Staffordshire NHS Trust Inquiry. However, the experience of the courts hearing cases of wilful neglect in relation to adults who lack capacity show that they are complex trials and, despite several appeals, still lack clear guidance that nurses can apply in practice to avoid prosecution while still promoting the autonomy of patients. In this article the author reviews recent cases of wilful neglect to come before the Court of Appeal and argues that rather than offering protection to patients, criminalising a failure to act is more likely to result in paternalistic interventions, with nurses insisting on providing care because they fear prosecution if they fail to do so.
medication correctly and at the right time and failing to provide a balanced diet. The nurse argued that she tried to provide the care but the patient refused to accept her help, and in the circumstances felt it was wrong to override the patient’s wishes. The Court of Appeal acknowledged that people who lacked capacity should be protected from ill treatment and wilful neglect but lamented the difficulty in making out the offence because of the complex nature of the Mental Capacity Act 2005.They acknowledged that capacity was not a blunt all-or-nothing condition but one that was issue-specific, with patients lacking capacity for one decision but retaining it for others. An omission to provide care by a nurse in the belief that it reflects and protects the autonomy of the patient would not be wilful neglect. Unfortunately for nurses making that judgement the Court of Appeal also held that each case would have to be considered on its specific facts, with the real risk of prosecution for those determined to uphold choice and autonomy for vulnerable patients in accordance with the 2005 Act.
British Journal of Nursing, 2013, Vol 22, No 20
British Journal of Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on November 21, 2015. For personal use only. No other uses without permission. . All rights reserved.
LEGAL unlikely to have saved the patient. The Court of Appeal held that the nurse had been properly convicted of wilful neglect under the Mental Capacity Act 2005, section 44. Neglect occurs where a nurse fails to do that which ought to be done in the treatment of a patient. The Court of Appeal further held that it was no defence to say a nurse failed to act because of panic or stress. For the neglect to be wilful it must be shown that the nurse knew it was necessary to administer treatment but deliberately decided not to do so because they could not face it. This interpretation of wilful neglect by the Court of Appeal is likely to result in nurses adopting a more paternalistic approach to their interventions and insisting on providing treatment that is unnecessary or futile because a failure to act might result in prosecution. In R v Patel [2013] the futility of CPR in that patient’s case was held not to be a defence to wilful neglect. It is enough for the prosecution to show that a nurse deliberately failed to carry out treatment that they ought to have carried out, regardless of its outcome, in order to secure a conviction.
Key points n The Berwick report recommends that poor care resulting from wilful or reckless neglect or treatment be subject to criminal sanctions n Under the Mental Capacity Act 2005 neglect occurs where a nurse fails to do that which ought to be done in the treatment of a patient n Neglect is wilful if the nurse knew it was necessary to administer treatment but deliberately decided not to do so because he or she ‘could not face it’ n The emphasis on each case turning on its individual facts and the absence of clear principles that set out what is expected of nurses to avoid prosecution is likely to result in paternalistic nursing that is contrary to patients’ wishes
subsequently died of toxic shock. The judge held that, ‘A health professional would be told that grossly negligent treatment which exposed a patient to the risk of death, and caused it, would constitute manslaughter.’ The doctors each received a suspended jail term of 14 months. Two nurses were convicted of the manslaughter of a patient at a nursing home through gross neglect. The patient died from septicaemia resulting from pressure sores the size of a fist that developed while she was a resident at the nursing home. The sores had penetrated to the bone and the court heard that the smell of rotting flesh was so great they had to move the patient to a different bed away from other patients. The nurses were sentenced to 1 year in prison (R v Latham & Campbell (2003)).
Gross negligence Where a deliberate failure to provide treatment contributed to the death of a patient, a nurse would face the more serious charge of gross negligence manslaughter (R v Patel [2013]). In R v Bateman [1925] the court held that gross negligence occurs when someone shows such disregard for the life and safety of other persons as to constitute a crime worthy of punishment. In health care the issue of gross negligence arose in R v Misra & Srivastava [2004] where two doctors were found guilty of gross negligence when they failed to heed the warnings to call for senior assistance because a patient was seriously ill. The patient
Conclusion The Government has been urged by the Berwick report into patient safety to extend the criminal offence of wilful neglect to encompass all patient groups. Such an action
is unlikely to result in improved protection for patients. Prosecutions under the offence currently available in the Mental Capacity Act 2005 have been complex to prosecute with courts being asked to objectively analyse the clinical decision making of nurses in each case. The emphasis on each case turning on its individual facts and the absence of clear principles that set out what is expected of nurses to avoid prosecution is likely to result in paternalistic nursing that is contrary to the wishes, feeling and beliefs of patients as nurses insist on providing care for fear of being BJN prosecuted if they fail to do so. Conflict of interest: none Mason R (2013) ‘NHS staff could be prosecuted for wilful neglect or manslaughter, says Francis’. The Telegraph,12th February. http://tinyurl.com/nehzq4u (accessed 31 October 2013) National Advisory Group on the Safety of Patients in England (2013) A promise to learn - a committment to act: Improving the safety of patients in England. Department of Health, London. http://tinyurl.com/ q6a7zkh (accessed 30 October 2013) R v Ligaya Nursing [2012] EWCA Crim 2521 R v Patel [2013] EWCA Crim 965 R v Bateman [1925] Cr. App R. 8 R v Misra & Srivastava [2004] EWCA Crim 2375 R v Latham & Campbell (2003) (Isle of Man High Court: 27th October)
About the book
© 2013 MA Healthcare Ltd
n
Illustrates how reflective practice can fulfil a need for all health care professionals to make sense of their clinical experience Discusses the clinical implications of the principles and processes associated with reflective practice
n n
Represents a variety of models and classifies and critiques them
The book is designed to assist health care professionals to develop the art of learning from reflective practice. Journal writing and analysis of critical incidents are two ways to facilitate reflection. Specifically they relate to the art of reflection-on-action . The book is divided into three broad sections to do with ‘context’, ‘learning processes’ and ‘outcomes’. In Part 1: Context, the genesis, goals and interests of reflective practice are set out. Part 2: Process describes and justifies journal writing and critical incident analysis as two ways to learn from reflection-on-action. Finally, in Part 3: Outcomes the implications for clinical practice that arise from reflecting-on-action through journal writing and critical incident analysis are examined.
Includes practical suggestions along with discussion of their advantages and limitations This book is intended to support health care professionals in becoming more personally and publicly accountable by helping them to reflect upon what may well be perceived as competent and skilful clinical action. Through the more generic process of reflective practice and the more specific and related approaches of journal writing and critical incident analysis, we hope that health care professionals may be able to make even more sense of their clinical worlds by additionally inquiring into, and understanding more richly, that which is often implicit in everyday practice.
ISBN-13: 978-1-85642-248-2; ISBN-10: 1-85642-248-8; 234 x 156 mm; paperback; 260 pages; publication About the authors 2008; £24.99 Tony Ghaye is C.E.O. of the Institute of Reflective Practice-UK, Professor in Educare, Visiting Professor at the Universities of Lulea, Sweden, Wales-NEWI and Senior International Consultant at Beijing-Geely University, China.
Order your copies by visiting
www.quaybooks.co.uk
Other titles of interest
+44(0)1722 716 935
Critiquing Nursing Research 2nd Edition Effective Clinical Supervision Empowerment through Reflection Reflection: Principles and practice for health care professionals
by Tony Ghaye and Sue Lillyman
British Journal of Nursing, 2013, Vol 22, No 20
Sue Lillyman is a Senior Lecturer at University of Central England and Affiliated consultant at the institute of Reflective Practice-UK.
or call our Hotline
Learning Journals and Critical Incidents 2nd edition
n
This is the 2nd edition of the best selling book Learning Journals and Critical Incidents which has been widely acknowledged for its contribution to the understanding of reflection and reflective practice. This edition has been thoroughly updated to recognise changes and developments in both theory and practice over recent years.
Learning Journals and Critical Incidents Reflective Practice for Health Care Professionals
2nd edition
1191
British Journal of Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on November 21, 2015. For personal use only.byNo without permission. . All rights reserved. Tonyother Ghayeuses and Sue Lillyman www.quaybo oks.co.uk
