Crossing the
boundaries:
Disciplineto
Crime
 Clear since 1770…
 “Wrongs are divisible into two sorts or species: private...
Overarching
consistent
theory.
Pending…
2
Discipline:
3 elements
Unsatisfactory conduct; Misconduct
National Law NSW
Part 8
Performance
Health
Conduct
Unsatisfactory
professional
conduct
 ….includes conduct that demonstrates
 the knowledge, skill or judgment possessed
 ...
Professional
misconduct
 ….unsatisfactory professional conduct
 of a sufficiently serious nature to justify suspension o...
Crime
“Crime”
CrimesAct,
OtherActs.
Performance
Intent
Reckless
Specific
criminal
provision re
medical
 CRIMINAL CODE (QLD) - SECT 282
 282 Surgical operations and medical treatment
 ...
Specific
criminal
provision re
medical
 CRIMINALCODE (QLD) - SECT 284
 284 Consent to death immaterial
 Consent by a pe...
Specific
criminal
provision re
medical
 CRIMINALCODE - SECT 288
 288 Duty of persons doing dangerous acts
 It is the du...
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; ...
Purpose:
Crime
 Crime
 “One of the main functions of criminal law is to identify
and to provide punitive sanctions for, ...
Focus
differences
 Crime – the public & the wrongdoer
 Discipline – the public
 Tort –the individual’s rights
13
Earlier examples
Valentine 1846; medication error
Pearce 2000 – conviction, manslaughter child (overdose)
Reimers 2001– ac...
Recent
examples
Peters – GBH – HCV Infection
Reeves – Assault, absent consent
Patel – Abandoned after appeal / rehearing
I...
Case example
Guilty plea
Peters
55 charges of negligently causing serious injury.
“On 55 occasions you injected yourself w...
A draft
analysis –
which areas
cause concern?
• Criminal negligence
• Intent – eg Shipman.
• Medical practice
provides a m...
Discussion
 Pure mistakes about consent (eg wrong patient /
wrong procedure)- when will these be a crime?
 Awareness ? R...
Features
leading to
prosecution?
 Clear intent
 Death
 Drugs
 Multiple patients affected
Reassurance
 Competent and careful investigation
 Consideration of context of care
 Appropriate expert evidence
 Atten...
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 i...
Berwick report
2013
 …We do not support the punishment of
organisational leaders, Boards and chief
executives, or others ...
Argument in
favour of
criminaloption
 Avoids requirement for ‘damage’, where appropriate
 Access to stronger sanctions f...
Rarely needed, but necessary.
25
References
 J Bibby, Would criminalising healthcare professionals for wilful
neglect improve patient care? BMJ 2014; 348:...
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Bill Madden, National Practice Group Leader-Medical Law, Slater & Gordon - Crossing the Boundaries: From Negligence to Intentional Torts, From Discipline to Crime

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Bill Madden delivered the presentation at the 2014 Medico Legal Congress.

The Medico Legal Congress this is the longest running and most successful Medico Legal Congress in Australia, bringing together medical practitioners, lawyers, medical indemnity organisations and government representatives for open discussion on recent medical negligence cases and to provide solutions to current medico legal issues.

For more information about the event, please visit: http://www.healthcareconferences.com.au/medicolegalcongress14

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

  1. 1. Crossing the boundaries: Disciplineto 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
  2. 2. Overarching consistent theory. Pending… 2
  3. 3. Discipline: 3 elements Unsatisfactory conduct; Misconduct National Law NSW Part 8 Performance Health Conduct
  4. 4. Unsatisfactory professional conduct  ….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 reasonably expected of a practitioner  of an equivalent level of training or experience  s 139B, Health Practitioner Regulation National Law (NSW) No 86a 4
  5. 5. 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 5
  6. 6. Crime “Crime” CrimesAct, OtherActs. Performance Intent Reckless
  7. 7. 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
  8. 8. Specific criminal provision re medical  CRIMINALCODE (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. 
  9. 9. Specific criminal provision re medical  CRIMINALCODE - SECT 288  288 Duty of persons doing dangerous acts  It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty. 
  10. 10. Differences -Crime, Discipline, Tort 1 Explicit provisions 2 Burden of proof 3 Outcome
  11. 11. 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 thisTribunal 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. 11
  12. 12. Purpose: Crime  Crime  “One of the main functions of criminal law is to identify and to provide punitive sanctions for, behaviour that …is damaging to the good order of society…”  Lord Scott, Ashley [2008] 1 AC 962 12
  13. 13. Focus differences  Crime – the public & the wrongdoer  Discipline – the public  Tort –the individual’s rights 13
  14. 14. 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
  15. 15. 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)
  16. 16. Case example Guilty 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 the criminal law is merited.” (at [3]) Sentence 14 years with non parole 10 years, not altered on appeal. Peters vThe Queen [2013]VSCA 222
  17. 17. 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. Identity Treatment Consent Treatment Error / Assault Opportunity
  18. 18. 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? 18
  19. 19. Features leading to prosecution?  Clear intent  Death  Drugs  Multiple patients affected
  20. 20. Reassurance  Competent and careful investigation  Consideration of context of care  Appropriate expert evidence  Attention to the burden of proof
  21. 21. Extensions Perpetrator Supervisor / Manager
  22. 22. 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.
  23. 23. 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)
  24. 24. Argument in favour of criminaloption  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
  25. 25. Rarely needed, but necessary. 25
  26. 26. 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.  DGriffiths & A Sanders, Bioethics, Medicine and the Criminal Law, volume 2, Medicine Crime & Society, 2013, Cambridge.  R Leflar, The Law of Medical Misadventure inJapan, Chicago-Kent Law Review:Vol. 87: Iss. 1, Article 5.  R Stevens, Private Rights and PublicWrongs (January 30, 2014). book of essays edited by Matthew Dyson, "UnravelingTort and Crime", Forthcoming.Available at SSRN: http://ssrn.com/abstract=2388072  Peters vThe Queen [2013]VSCA 222

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