Prosecuting Nurses

Nursing is a caring profession. People used to enter it and practise nursing for very different reasons and from a different standpoint than others in the medical profession. Nurses are really at the sharp end of care and make a difference to the care outcomes of ill people. Forty years ago nurses, then mainly women, were regarded as angels; very often taxi drivers refused to accept their money at the end of a journey and grateful patients were kind to them. Since then nursing seems to have changed, with higher and more complex technology augmented these days by less tenderness, less time to spend with patients and sometimes less love for their patients.

There have been several hospitals in England where there have been scandalously poor levels of care. The worst cases happened at Stafford Hospital but there have been cases elsewhere. There has been needless suffering and needless deaths, followed by solemn enquiries and politicians talking about their determination to put things right and prevent such instances ever happening again.

There are only two jobs that politicians do. They administer government and they make laws. If they blame the scandals on poor administration they will ultimately find that the blame falls on their own shoulders, because they determine the resources that hospitals have and they determine the targets and priorities of hospitals. The second thing that politicians do is make laws. If they say a scandal can be prevented by making laws, it shifts the blame from the targets, budgets and priorities that they have laid down and moves the blame to a lack of laws. This is natural enough because most politicians are either career politicians without experience of administration except what they have learned on the hoof or lawyers, who are not blessed with much talent of administration.

If an elderly person starves to death or dies of thirst in hospital it will be caused by neglect, but neglect is not a simple concept, because neglect in a hospital does not happen in a vacuum but as a result of all the things that go on his hospitals. You cannot “forget” to feed a person for four days or neglect provide a person with drinking water for two days unless there is some ethos coupled by a lack of proper supervision and resources to care for the patients of the hospital.

But politicians, being politicians, have come up with a concept of criminalising neglect in hospitals. It is a concept that I find uncomfortable, because it is riddled with many potentially unjust outcomes. Those who entered the caring professions would find the pressure of being prosecuted for an inchoate offence when the next scandal arose and the cries of “someone must be held responsible” go up. Carers would be held responsible when they will simply be one group of a chain or responsible people.

If a coal mine collapses because defective pit props were purchased by a mine boss desiring to save money and those defective pit props were incorrectly installed prosecuting the miner who installed them while allowing the boss to go free would be unjust. Events such as happened at Stafford hospital happened because of a series of inter-connected and inter-related events. It happens because of a series of individual failures mostly made possible because of a failure by leaders to do their jobs.

At the Moment the Mental Incapacity Act Section 44(2) created an offence of ill-treatment or wilful neglect of a person lacking mental capacity. Under the leading cases interpreting the meaning of “wilful” the person accused must at the time of the neglect  have a state of mind to deliberately neglects the patient or else commits an act or makes omission not caring whether such act or omission amounts to neglect. There are a number of technical points about S44(2) and I shall not elaborate on them here, because the important point about this offence is that if wilful neglect is to be proved, you have to look at the state of mind of the accused.

The government seems to have decided to use S44(2) which only applies to wilful neglect of people who lack mental capacity, as a model for introducing a new crime of wilful neglect that would apply to all patients and could be committed by all health workers.

However, all the nurses may forget to feed or water a patient we have to ensure that we understand the reasons why they do neglect patients from time to time. The reasons probably arise not because the nurses are careless or uncaring, but that have too much to do and the hospital management have not provided sufficient resources to ensure that nursing is carried out properly.

It is the same kind of thing that allows hospitals to become centres where patients not merely recover from the disease they had when they entered it, but pick up some other disease (often MRSA) because the standards of cleanliness are not what they should be. Hospitals are inevitably a breeding ground for germs and if we do not provide the hospitals with sufficient nursing and cleaning resources it is inevitable that germs and diseases will prosper there. The hospital workers are directed by their managers to work quickly, and to take short cuts. Instead of spending a proper amount of time to wash their hands the works are given antibacterial soap and because time is money, but antibacterial soap is less effective than ordinary soap and water if insufficient time is allowed for hand washing.

I foresee that if the new law proposed comes into effect and an old person dies of thirst in a hospital the nurses involved will be prosecuted, but not the direct supervisors of those nurses, whose job was to ensure that their charges did their own jobs properly, and certainly none of the highly paid hospital administrators, whose job was to ensure proper resources were allocated to ensure that there were sufficient nurses to nurse properly, and certainly not the health boards and those in the Department of Health whose job it was to allocate sufficient resources.

So it seems to me that this new crime will only apply to the lowly while those on high commit no crime if they are responsible for a scenario where it is possible for someone to starve to death or die of thirst in a hospital. They might wilfully neglect to employ sufficient nurses but they will not face any prosecution and on the basis of recent events will keep their jobs or move to another highly paid job, retaining their pensions and other perquisites.

We have enough crimes on the Statute books; if this new crime is created it will not help patients at all. At best it will assuage a thirst for vengeance, by prosecuting a nurse who had the misfortune to be working in a badly resourced and badly run hospital and continuing to allow decision makers who create situations which allow nurses to be subject to so much pressure in a poorly supervised environment to continue so to do.

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