Serious crime in the workplace is rare, but employers should be on the alert
for any warning signs. By Linda Goldman
and Joan Lewis
The shock waves following GP Harold Shipman’s murderous activities remind
the public that doctors and nurses can use drugs or carry out surgery to kill, whether
negligently or by premeditation. Despite the legal niceties between clinical
negligence, manslaughter and murder, there is a period before the discovery of
lethal events, when ordinary people are working alongside colleagues who are
about to face the most serious allegations.
There are criminal and civil aspects of dealing with matters involving death
or serious injury. In criminal cases, the regulatory bodies are at present
powerless to suspend practitioners from the register pending prosecution, although
after the conviction of a serious crime they are struck off.
Employers have disciplinary procedures, however, which allow for suspension
pending the resolution of criminal proceedings. It is therefore possible, in
theory, for an individual on bail to continue to treat patients while awaiting
trial. Suspension is a neutral act which allows individuals, even Shipman –
until he was convicted – to continue to draw salary and receive other benefits.
Preventive role
Occupational health teams play a preventive role by providing information or
carrying out special risk assessments where there is a risk of negligence or
criminal activity on the part of a co-professional or a care subject. There is
an increasing likelihood of having to deal with such a situation.
The Public Interest Disclosure Act 1998 gives individuals the right not to
be unfairly dismissed for acting in the public interest to disclose acts or
omissions of other members of the workforce, provided that the report is based
on the reasonable belief that a criminal offence has been, is being or is
likely to be committed. Disclosure by even the most dedicated amateur detective
must be made in good faith to a specified person in authority. Had the Act been
in force earlier, otherwise confidential information about the infamous child
killer, nurse Beverley Allitt, could have been revealed to the appropriate
authority in the interests of prevention of crime.
Staff selection
Is it part of the occupational health remit to recognise potential psychopaths
in the workforce? The difference between such a requirement and that of dealing
with routine work-related health disorders is that there should be support from
the personnel department. It is hoped that previous criminal records have been
highlighted at the recruitment stage by accurate job application procedures and
proper referencing.
In this way a Shipman job or partnership application form should have
revealed his old conviction for forging prescriptions. Of course there is no
choice between a job applicant who has a history of respecting the integrity of
those entrusted to his care and one whose past shows such a callous disregard
for ethics by using his patients’ names to acquire pethidine for
self-gratification.
Under the Rehabilitation of Offenders Act 1974, "old" convictions,
except for medical personnel, may be disregarded. The professional body must be
informed if a member is convicted of a crime, whereupon disciplinary measures
will arise for bringing the profession into disrepute. They may not be
permanently struck off the register, as the Government would wish1. In any
event, it might be useful to check continuity of registration. Intermittent
registration, for which there may be an innocent reason, needs explanation.
Criminal charges arise where a person sets out fraudulent qualifications in the
hope of obtaining an appointment. Lying on a job application is a form of theft
under the Theft Act 1968, by reason of obtaining pecuniary advantage by
deception.
Criminal or civil matter?
Death or serious injury may result through negligent or deliberate acts.
Either event may give rise to civil proceedings but the latter will give rise
to criminal charges. Indeed, the criminal charge of manslaughter may result
where there is a very serious degree of negligence. In R v Bateman (1925), (see
Case Roundup) in describing the difference between civil and criminal
negligence, it was said criminal negligence goes beyond a mere disregard for
the life and safety of others and is conduct deserving punishment. For murder
to be proven, the crime must be committed with the intention, described as
"malice aforethought", that harm would result.
Legal links
The issue of crime in the workplace is complex and affects many facets of
the law:
– Employment law – the right to blow the whistle on actual, or potential,
offenders
– Health and safety law – the right to a safe workplace
– Civil law – the right to damages to compensate for injury
– Criminal law – trial by jury: innocent unless proven guilty
Few murderers carry out their activity on the factory floor but medical
people probably have the greatest opportunity using the tools of their trade
whilst on shift. However, crimes of violence generally may have precursors in
irrational behaviour which the occupational health team could observe at work
through the process of risk assessment as well as general therapeutic contact.
A helping hand is needed from personnel for the investigative process: good
references for new members of staff and reliable vetting of application forms.
Watching brief
The occupational health nurse or doctor cannot be expected to carry the
responsibility for employing a potentially dangerous person. But if symptoms or
behaviour are ignored where they could or should have been spotted and action
taken, there is the risk of a claim in negligence which would depend on proof
of there being a duty of care as between the occupational health practitioner
and the injured party. Although that may be too great a judicial distance to
leap, it could amount to a competence issue affecting future employment.
Linda Goldman is a practising barrister. Joan Lewis is director of
Advisory, Consulting and Training Associates
Case Roundup
GMC Proceedings: Maureen Farrar
The Times, 22 March, 2000
Maureen Farrar was found to have brought the profession into disrepute when
she lied about her experience and her qualifications so as to obtain the
£53,000 per year job to which she was appointed in the Thanet Healthcare Trust,
Kent.
Her inability to perform the requisite functions of the job became manifest
while she was being trained to take over her role. Enquiries revealed the
dishonesty of her application. She was suspended from the medical register for
12 months.
R v Bateman (1925) 19 Cr.App.R. 8, CCA.
Court of Criminal Appeal, reported in the Criminal Appeal Reports
A patient died after the doctor mistakenly damaged her uterus, ruptured her
bladder and severely damaged her colon while attempting manual turning during
childbirth.
He successfully appealed his conviction of manslaughter. The appeal explains
the difference between civil and criminal liability: "If A has caused the
death of B by … negligence … the claimant must prove – in addition to pecuniary loss caused by
the death – that A owed a duty to B to take care, that that duty was not
discharged, and that the default caused the death of B. To convict A of
manslaughter, the prosecution must prove [those] three things and … that A’s
negligence amounted to a crime. In the civil action … it matters not how far
A fell short of the reasonable standard required by the law.
The extent of his liability depends not on the degree of negligence, but on
the amount of damage done. In a criminal court, the amount and degree of
negligence are the determining factors. The facts must be such that, in the
opinion of the jury, the negligence went beyond a mere matter of compensation
between subjects and showed such disregard for the life and safety of others as
to amount to a crime against the state and conduct deserving punishment."
Medical Defence Union, Annual Report: 1982.
A dentist simultaneously extracted a tooth and administered a general
anaesthetic.
The patient died. The dentist was convicted of manslaughter. He was held to
have taken a risk which a prudent dentist would not have taken in carrying out
the dual procedures. This case
illustrates the potential for tragedy when a person uses dual expertise.
Whether or not the dentist was qualified to administer the anaesthetic, he was
unable to do the monitoring procedures necessary while carrying out the
surgical task.
R v Adomako (House of Lords) [1994] 3 WLR288
A was carrying out his role of anaesthetist during an eye operation when a
tube became disconnected from the ventilator. The patient suffered a cardiac
arrest and died. A’s appeals against conviction for manslaughter to the Court
of Appeal and the House of Lords both failed. A had taken over from another
anaesthetist during the operation.
While he was in charge of the patient, the endotracheal tube became
disconnected. The supply of oxygen ceased and cardiac arrest occurred. A did
not notice the tube was disconnected, even when the alarm sounded on the blood
pressure monitor, 45 minutes after the disconnection. A then checked the
equipment and administered atropine but only became aware of the disconnection
after commencing resuscitation.
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Criminal negligence was upheld as, in addition to the underlying
disconnection problem, A had failed to notice that the patient’s chest was not
moving, the dials on the ventilating machine were not operating and the patient
was cyanosed. Worse, he noticed but failed to understand the correct
significance of the drop in the patient’s pulse and blood pressure.
A conceded that he had been negligent but denied criminal liability. It was
apparent that A’s conviction was justified on the grounds that there was
inattention or failure to advert to a serious risk going beyond mere
inadvertence in respect of an obvious and important matter which his duty
demanded that he should address. His conviction was upheld.
