The Cappuccini case – is criminal prosecution of doctors desirable?

Accountability for mistakes and the government proposals for fixed costs for civil claims.

I read about the collapse of the criminal case against a NHS Trust involving the tragic death of teacher Frances Cappuccini last week with great sadness for her partner and family.

However there is another aspect to consider, namely whether criminal prosecution is the best way to hold doctors and hospitals to account. Is it in the public interest to have doctors and the medical profession living in fear of criminal prosecution? Will this encourage open consideration of mistakes and an opportunity to learn from them? I think not.

Jeremy Hunt said in 2015 that there were probably about 1,000 “avoidable” deaths in the NHS every month. That is about 12,000 deaths every year and does not even begin to include serious injuries to patients that fall short of being fatal!

There is a clear public interest in maintaining high standards of care in the NHS and accountability for mistakes but does criminal prosecution inhibit or encourage openness about mistakes? The airline industry has a much more constructive approach to mistakes when they happen – open discussion is mandated and the opportunity is taken to learn from what happened with a view to preventing similar incidents in the future.

It seems to me that criminal prosecution in medical cases is usually inappropriate except in really exceptional cases. Instead, the NHS should adopt a similar system to the airline industry and also encourage accountability and regulation of standards by the availability of proper investigation of claims through the civil court system.

Unfortunately, proper investigation via the current civil court system into the deaths and injuries of children, elderly and disabled people will be effectively prevented by the government’s plan to introduce a “fixed costs” regime for clinical negligence cases worth up to £250,000 from October 2016. Under this, further costs are barred once a fixed limit is reached.

So the future seems to be that mistakes will continue to happen and accountability to injured patents and bereaved families will be seriously damaged.