One of the most famous traditions in Western medicine is the reciting of the Hippocratic Oath, a set of guidelines for doctors attributed to Hippocrates, a Greek physician who lived around 400BC. In days gone by, medical students swore the oath as part of their training, promising to “use treatments for the benefit of the ill in accordance with my ability and my judgment, but from what is to their harm and injustice I will keep them”.
While the vast majority of doctors and other medical professionals will stick to that principle – doing what’s best for their patients, whether or not they actually swore the Hippocratic Oath as part of their training – sadly there will always be a small number of physicians who harm their patients, whether through ill treatment or wilful neglect. The same is true for carers; while most dedicated individuals provide social care in patients’ homes or in the wider community, the use of hidden cameras has revealed the horrifying mistreatment of older people in a small number of cases.
Public outcry has spurred on politicians to change the law so that medics or carers who mistreat or wilfully neglect their patients are punished. At present, healthcare professionals or carers can only face criminal charges if their negligence results in a patient’s death, except in the case of mental health patients and adults with incapacity, as any mistreatment of these groups is already covered by separate legislation.
The Scottish Government’s Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill has begun to work its way through the Scottish Parliament’s committee process, following a public consultation that ended in January. In line with similar measures introduced in England and Wales, Scottish Ministers plan to create an offence of ill treatment or wilful neglect of adults in health and social care settings.
Proposals to extend the offence to cover those working with children have been delayed because some of the groups that responded to the consultation said there needed to be further dialogue over how such measures would fit into existing legislation that affects the care of young people. Unpaid carers – such as partners caring for their spouses or children looking after their parents – have also been excluded from the Bill.
Yet the legislation will apply to both organisations and individuals employed to care or treat people, as well as their managers and supervisors. Volunteers who provide care on behalf of a charity or other voluntary organisation will also be covered by the new laws.
While few would argue that patients need to be protected from ill treatment or wilful neglect at the hands of healthcare workers or social care providers, the measures presented in the Bill raise a number of serious questions. One of the most pressing issues is the lack of definition of either “ill treatment” or “neglect”.
Ministers argued that neither term had been defined in the previous mental health or incapacitated adults legislation and that they would be creating an inconsistency if they did so in the current Bill. Yet, without firm definitions, it will be left up to the courts to work out what counts as “ill treatment” or “neglect” on a case-by-case basis, which in turn could lead to inconsistencies, with prosecutors potentially bringing criminal charges against medics for accidents and human errors rather than wilful acts.
Fears over potential criminal proceedings could also make health workers more reluctant to give evidence to their regulatory bodies during hearings. Ultimately, regulators need to make sure that lessons have been learned from previous mistakes so that patients are protected, and concerns over court action could stand in the way of this objective.
The new offences also seem to contradict the “duty of candour” that Ministers are introducing in the same Bill. If a “reportable patient safety incident” happens or is believed to have happened then health or social carers need to provide the patient or their representative with information and support. If a professional is worried that reporting such an incident could lead to them being prosecuted for neglect or mistreatment then they will be left with a moral dilemma.
Protecting patients – whether they be lying in a hospital bed or sitting in their own home – is essential to maintain trust in our health and social care systems. Yet potentially prosecuting doctors or nurses for accidents or mistakes, could only serve to harm those most in need. The ethical questions that faced those drawing up the Hippocratic Oath are still as prevalent today as they were more than 2,000 years ago.
Claire Raftery, Solicitor - BLM
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