Criminalizing poor care

Criminalizing poor care
There have been calls from some quarters for criminal sanctions for those responsible for poor care at Mid Staffs and other hospitals. Both Robert Francis and Don Berwick consider there may be a role for creating new criminal offence(s) relating to poor care, but also state this is be rarely required (rather than used with gay abandon as some would like). There are several reasons why criminalizing poor care is not a good idea.

1) Criminal standard of proof.
The criminal standard of proof would make it difficult, as it is 'beyond reasonable doubt'. Civil suits and professional sanctions only require to be proved on the balance of probabilities. Additionally, negligence claims require no proof of wrongdoing.
2) Effect on transparency
If criminal sanctions were a possibility, then any investigation intended to improve the quality of care would be hampered, regardless of whether or not criminal prosecution was likely. So the quality of care, and certainly transparency, might worsen.
3) Disproportionality
If poor care was to be criminalized, this would make healthcare totally different from other areas. Where care is abuse, then this can already be prosecuted. Making someone guilty of simple mistakes a criminal would be contrary to the nature of criminal law which is about condemning morally reprehensible behaviour, not negligence (with a few exceptions)
4) Effect on frontline staff
This sanction is most likely to affect frontline staff, due to increasing evidentiary difficulties with more remote actors. Often poor healthcare is down to the performance of several members of staff, and assigning responsibility becomes difficult. This can be seen with the failure to convict anyone except sole traders for corporate manslaughter.