Balancing the scales of safety: the criminal law’s impact on patient safety and error reduction

The chance of death from medical error within the hospital setting is 33,000 times greater than dying in an aircraft crash. Despite patient safety being central to healthcare delivery across the world, medical errors and patient harm remain prevalent. This review evaluates the role of the criminal law in regulating healthcare across England and Wales, using prior legal case studies, and focussing on the offence of gross negligence manslaughter (GNM). It further examines the extent to which the law promotes patient safety and minimises fatal errors in healthcare. Medical negligence resulting in a patient's death invokes the more punitive criminal law. In the context of the legal framework in England and Wales, individuals, including medical professionals, who are found to have caused a fatality due to 'gross negligence' may potentially be subject to manslaughter charges. Healthcare delivery is complex as it involves working in high-risk environments, invariably as part of a team. When things go wrong, it is rarely the result of an individual's error but rather a systemic failure. Human factors that may contribute to GNM include organisational influences such as trust targets and pressures to deliver results, unsafe supervision, or inadequate staffing, and preconditions for unsafe acts whereby clinicians are fatigued whilst performing multiple roles simultaneously. A more just culture is warranted in response to the criminalisation of cases of healthcare malpractice, in particular those involving GNM, in which healthcare professionals would be able to learn without fear of retribution.