Neil Allen

Healthcare scandals in the NHS: crime and punishment

The Francis Report into failures of care at Mid Staffordshire NHS Foundation Trust Hospital documented a series of ‘shocking’ systematic failings in healthcare that left patients routinely neglected, humiliated and in pain as the Trust focused on cutting costs and hitting government targets. At present, the criminal law in England plays a limited role in calling healthcare professionals to account for failures in care. Normally, only if a gross error leads to death will a doctor or nurse face the prospect of prosecution. Doctors and nurses caring for patients under the Mental Health Act 1983 and the Mental Capacity Act 2005 may however be prosecuted for wilful neglect of a patient. In the light of the Francis Report, this article considers whether the criminal offence of wilful neglect should be extended to a broader healthcare setting and not confined to mental healthcare.

THE BOURNEWOOD GAP (AS AMENDED

Both the Mental Health Act 1983 and the Mental Capacity Act 2005 authorise the treatment and detention of the mentally ill. Their interface is often clear cut. After all, the 1983 Act formally sanctions and safeguards compulsion where it is necessary to protect patients or others. Individuals can only be detained for psychiatric, not physical, health purposes. And such detention can only take place in hospital. In contrast, the informality of the 2005 Act defends actions taken in the best interests of those unable to decide for themselves. Compulsory treatment and detention of those with capacity cannot be sanctioned. Nor can those lacking capacity be treated or detained for the protection of others.

Is Capacity “In Sight”?

Introduction Convicted of rape, Mr B was sent to Broadmoor.2 His psychiatrist diagnosed bipolar affective disorder and wanted, if necessary, to compulsorily treat him with anti-psychotic medication. In his professional opinion, Mr B lacked insight into his condition and lacked the capacity to refuse the treatment. Baroness Hale once remarked that “psychiatry is not an exact science”.3 If there was ever a case to confirm that view, this is it.

Litigation friends or foes?: representation of 'P' before the Court of Protection

This article argues that, properly analysed, the common law and the European Convention on Human Rights (ECHR) march hand in hand with the provisions of the Mental Capacity Act 2005 (MCA 2005) so as to impose a set of requirements on litigation friends acting for the subject of applications of proceedings before the Court of Protection (‘P’) which are very different to those currently understood by practitioners and the judiciary. The authors examine critically current practice and procedures and provide a set of proposals for reforms.