Karoshi

Karoshi

The Japanese have a name for death through overwork, karoshi. The expression that "nobody ever died from hard work" is simply not true. The recent death of a Bank of America intern from an epileptic seizure could have been triggered by fatigue or sleep deprivation, Poplar's Coroner's Court heard:
 http://www.theguardian.com/business/2013/nov/22/bank-intern-moritz-erhardt-died-epileptic-seizure-shower 

There have been case reports of epileptic seizures triggered only by sleep deprivation. Sleep deprivation seems to have an effect on interictal epileptiform discharges (IEDs). Sleep deprivation will only trigger seizures in susceptible individuals, but those individuals will often have no reason to suspect that susceptibility.

Guinness World Records no longer accept record attempts for sleep deprivation over health concerns. The extreme sleep deprivation experiments in rats are marred by the methodology which imposed severe stress, which may well have been the cause of death. 

Severe stress from overwork can result in raised cortisol levels, raised blood pressure, heart attacks and strokes. The first reported case of Karoshi was a stroke in a 29 year old in 1969. It seems like it's not hard work as such that's the problem, but the associated stress, fatigue and sleep deprivation.

"Public interest journalism": when does reporting turn into advocacy?

"Public interest journalism": when does reporting turn into advocacy?

Shibley Rahman has written an excellent post about the wilful inattention of healthcare journalists to the smears surrounding the reporting of MidStaffs: http://t.co/UjSNBq1gIY

It seems clear that cub journalist Shaun Lintern who proudly proclaims that he "helped expose Mid Staffs scandal" and that he's "proud to have worked with Cure" is now attacking public health doctor Gabriel Scally because he is contradicting the smears and distortions of Cure and supporters. His career and success are intertwined with the success of Cure, and he seems to have crossed the line between reporter of the news and an advocate for the Cure campaign. The Health Service Journal is often considered by NHS staff to be a government mouthpiece, but surely even they would distance themselves from Tweets like this:

1. Shaun Lintern ‏@ShaunLintern40m

   Where is Labour's detailed response to #Francis? How can we make judgements without? I want and need more from my opposition.

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   12:31 PM - 24 Nov 13 · Details
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2. Max Davie ‏@maxdavie21m

   @ShaunLintern they're not opposing you, Shaun. Or are they.... Jeremy?

If Shaun Lintern's opposition is the Labour Party, how can he claim to not be party political?

Accountability and responsibility in the NHS (or any complex organisation)

Accountability and responsibility in the NHS (or any complex organisation) 

One repetitive meme of the Cure campaign and those affiliated to it (often the British equivalent of the US Tea Party who believe all public services are wasteful, incompetent and self-serving) is the notion that there is no accountability in the NHS. This necessitates the creation of new criminal offences because as Will Powell put it:

We need laws in the NHS that would deter neglect. It's because there is no accountability that some healthcare professionals are less caring.

Others state that the lack of sweeping sanctions and sackings "from ward to board to Whitehall" (to quote Deb Hazeldine) is down to a conspiracy to defeat justice by deflecting blame from any one individual.

All this would be very worrying if it were true, but thankfully it is not. The NHS like any complex organization has systems in place to avoid the entire responsibility resting on one person's shoulders except where absolutely necessary. The same is true for an airline, another complex organization where safety is critical but delivered by a number of people. The reason for this is that the inevitable human failure should not result in catastrophe - the system should involve sufficient checks that one person's error is picked up by somebody else. No conspiracy, just good risk management. More than one person checks which leg is to be amputated. Good practice, not an attempt to deflect blame.

So rare circumstances apart, like the transgressions of Beverley Allitt and Harold Shipman, when something goes wrong more than one person has failed. When a blood transfusion is given to the wrong patient, more than one person must have failed. Indeed Cure are implicitly acknowledging this with their call "from ward to Whitehall". How they reconcile these contradictions is frankly quite baffling.

They have been part of a smear campaign against Andy Burnham, even though he instigated an inquiry into Mid Staffs within a month of becoming Secretary of State for Health. The notion that the Minister for Health must fall on his sword if there are any failings in any hospital under his watch is utterly ridiculous, given the nature of healthcare in a structure like the NHS.

There are plenty of mechanisms for accountability in the NHS. Naturally, there is due process to consider. The existence of crime does not mean there is no accountability for criminals. The acquittal of some accused of crime does not mean that there is no accountability. The continued perpetration of crime doesn't necessarily mean that punishments aren't sufficiently draconian, unless you hold up states like Saudi Arabia as models of criminal justice.

So despite the continued protestations of Cure, accountability in their usage does mean "blame", and more than that "punishment". Retribution rather than correction. Looking backward rather than looking forward.

What is 'wilful neglect'?

What is 'wilful neglect'?

There will be lots of debate about whether the proposed new offence of wilful neglect will be a good thing or not, but the first question must be - what is "wilful neglect"?

Ultimately the courts will be interpreting the meaning of the statute, but if the statutory draughtsmen do their job we should have a reasonably clear idea exactly what "wilful neglect" means. Neglect refers to an omission. Omissions are rarely punished in criminal law, partly for policy reasons. It also tends to imply that there has been negligence, a well recognized legal concept. Most of us are familiar with the term 'medical negligence', which is a civil matter. This is for good reason, as negligence implies no fault - the issue revolves around a failure to meet a duty of care for whatever reason. 

In criminal matters, there are differing requirements for subjective fault depending on the crime. For the most serious crimes e.g. murder, intention (direct or oblique) is required. Other fault requirements (or mentes reae) are recklessness, knowledge and negligence. Negligence is not often the mens rea for crime as this level of culpability is not suitable for criminal labeling. With the more serious consequences e.g. death, then a result-based approach requires criminal punishment - hence gross negligence manslaughter. However, as the term plies, simple negligence alone is not sufficient. Actually it could be argued that gross negligence is close to recklessness, especially where medical gross negligence is involved (I will cover this in a further blog). 'Wilful' implies recklessness, so we have the conundrum of whether 'wilful neglect' requires negligence or recklessness. Berwick may have indeed been thinking of the US offence of 'reckless endangerment' when he talked about a new criminal offence. Recklessness would be more palatable as a fault requirement for a criminal offence.

As for the act requirement, neglect implies an omission, and omissions are rarely punished. Where someone has a familial connection, an exception is made and parents can prosecuted for gross negligence manslaughter for neglect. Generally however omissions do not give rise to criminal liability. The UK does not have so-called "Bad Samaritan" laws, for example. So wilful neglect appears in a case of child neglect, R v Shepherd, where 
Though timely medical attention might have saved his life his parents, who were poor and also of low intelligence, did not realise that he was ill enough to require examination by a doctor.
It was found that for neglect to be established, it need to be proved that:
(a) that the child did in fact need medical aid at the time the defendant was charged with failing to provide it and (b) either that the defendant was aware at that time that the child's health might be at risk if medical aid were not provided or that the defendant's unawareness of that fact was due to his not caring whether the child's health was at risk or not.
This concept of 'wilful neglect' was used in the Mental Capacity Act 2005 s 44, given that the person with a lack of capacity is in a similar position to a child in many respects. 

What would the remit of the new offence be? Would it apply to all harm suffered from recklessness? How would recklessness in this regard be objective or subjective. The current position on recklessness in English law is that reckless is subjective (Cunningham recklessness rather than Caldwell recklessness), and it seems that 'wilful neglect' also requires subjective recklessness. Would disregard of clinical guidelines be regarded as recklessness in some cases? If so, this would have major implications for defensive medicine. 

There is a lot to be considered before we can pronounce on the proposed new offence - the devil (as always) will be in the detail. It is likely that 'wilful neglect' will be interpreted in a very similar way to s 44 cases. Thus where a care home owner and manager are providing poor care, but nonetheless are doing this to the best of their ability, they will not be guilty of wilful neglect (R v Hopkins; R v Priest [2011] EWCA 1513)

New offence of "wilful neglect": 'Dangerous Care Act'?

New offence of "wilful neglect": 'Dangerous Care Act'? 

The government has announced it intends to make a new criminal offence of "wilful neglect" to cover knowingly poor care by doctors, nurses and managers. Both Francis and Berwick recommended that creating such an offence would be a backstop to the other host of reforms required to ensure safe reform. Neither suggested that the offence was important nor that there would be many prosecutions for such an offence.
Nonetheless, despite not making any recommendations about minimum staffing levels or addressing any of the recommendations fully (the proposed statutory duty of candour has been significantly diluted), the government will be legislating for jail sentences up to five years. Already the RCN and BMA have expressed reservations. It seems doubtful this measure will have a positive impact on transparency, and seems like a move away from the culture Berwick wanted to encourage - moving away from blame and fear as motivating factors.
If the government has truly failed to grasp the heart of the Francis and Berwick recommendation, then it is incompetent. More likely, it has resorted to the cheap and quick option which appeases those out for vengeance, like Cure the NHS.