When Should Bad-Apple Surgeons Be Prosecuted

When Should Bad-Apple Surgeons Be Prosecuted? Presented by: Dr. Mullock Date: 10 March 2022 Overview - Two recent English cases (Paterson, Bramhall) have raised important questions about the role of the criminal law as a response to non-fatal surgical harm. - Dixon-Woods, Yeung and Bosk (2011) – Regulatory vulnerability when 'bad-apples' fail to deliver on professional obligations and betray the trust of patients and peers. - When should Bad-apple surgeons be prosecuted? Glanville Williams: - "It may be questioned whether the criminal law has any place in controlling operations performed by qualified practitioners upon adults of sound mind with their consent, whether for reasons of therapy, charity or experiment. Controls exercised by the medical profession itself should be accepted as sufficient. If any particular serious problems arise they should be left for the consideration of Parliament." (1978) My focus - - Consent to reasonable surgery? • What constitutes valid consent? • What is 'reasonable surgery'? I argue the current law is unclear and anachronistic, perpetuating an approach that is inappropriately deferential to the profession. This creates a space for bad-apples to abuse their surgical privilege. The Law - Offences Against the Person Act 1861 - • Wounding, inflicting GBH with intent (sections 20 +18) • Assault by beating Consent to Surgery & the Medical Exemption • R v Brown Reasonable surgery? Lord Mustill, 'Proper medical treatment... in a category of its own.' • Chatterton v Gerson 'Information in broad terms...' Bad-apple Surgeons - Ian Paterson - Simon Bramhall Walshe & Chambers: - "To anyone who is familiar with the litany of medical failures and scandals of the past two decades - Rodney Ledward, Richard Neale, Dick van Velzen, James Wisheart, Harold Shipman and several others – the Paterson case will seem depressingly familiar. Once again we see a charismatic, powerful doctor whose incompetence, misconduct and criminal behavior went unchecked for years, in healthcare organizations where senior leaders know what was going on but did not act." (2017) BMJ What is 'Reasonable Surgery'? - R v Brown [1994] 1 AC 212 HL - Consent is necessary but not sufficient (surgery must also be reasonable). - Examining the principles leads to doubt because professional opinion prevails • Consent to objectively unreasonable surgery appears to be sufficient provided the accused appears to believe they were acting responsibly. Reasonable = Therapeutic? - Bland: Therapeutic interventions are 'proper medical treatment' - - P Lewis, 'The medical exception' (2012): 3 public policy justifications: • Patient Benefit • Public (third party) Benefit, e.g. live organ donation • Professional validation Brazier & Fovargue (2016): • 'All roads lead us to the medical profession... which may, on occasion, leave patients unprotected.' Authority On Reasonable Surgery - FGM is mutilation not 'surgery' - Surgical Body Modification is not lawful if it is not performed by a surgeon: - E.g. Brendan McCarthy (R v BM [2018] EWCA Crim 560): • 'The appellant's argument envisages consent to surgical treatment providing a defense to the person performing the surgery whether or not that person is suitably qualified as a doctor, and whether or not there is a medical (including psychological) justification for the surgery.' Non-Therapeutic Cosmetic Surgery: Any medical justification? - Pitts-Taylor: "a purchase, characterized by the rhetoric of fashion, consumption and self-presentation rather than medical or psychological necessity." (2009) - See: Keogh Report (2013), Nuffield Bioethics Council Report (2017) - Baker (2014): Some cosmetic surgery is not reasonable (because it is non-therapeutic and harmful) and should not be lawful. The Problem - - Contextually unsuitable and ethically unsound legal principles: • Common law principles on consent to treatment • Reasonable surgery = whatever surgeons deem reasonable Professional power dominates at the expense of respect for patient autonomy and bodily integrity: • The self-regulatory model is vulnerable when bad-apples go rogue (DixonWoods, Yeung and Bosk, 2011) • Bad culture and hierarchical systems + resource and staffing problems • The cosmetic surgery Industry: big business in an ethical vacuum? A More Patient-Centered Approach? - Feinberg, Harm to Others (1986): The 'Overlap' of Harming and Wronging: • More emphasis on (informed) consent as a legitimizing necessity to guard against unethical and unsafe surgeons • Autonomy and protecting bodily integrity justify a more patient centered approach - Relevant examples of a legal shift: • Criminal Contagion, R v Dica [2004] • Human Rights Law • III-Treatment and Willful Neglect offences 2015 Criminally Unreasonable Surgery? - Mason and McCall Smith's work on Gross negligence manslaughter error or violation? - A violation may be indicated when a patient suffers unexpected harm in circumstances suggesting a violation, e.g.: • No Consent, e.g. Paterson • Botched surgery and recklessness • Very serious error ('Never event' e.g. removing wrong organ or limb) and recklessness CONCLUSION - Uncertainty over the limits of the medical exception (consent to reasonable surgery) means that dangerous surgeons are free to violate patients. - Whenever a patient suffers significant unexpected harm, in circumstances suggesting that S has disregarded patient welfare, there should be greater scrutiny over how and why the harm occurred.