In England and Wales resort to the criminal process to address alleged medical malpractice remains rare. In English law the scope for prosecuting health professionals for poor practice resulting in harm to patients is limited. In most cases it is only a fatal and gross error that may result in criminal charges, and as we shall see in the next section of this paper, the Crown Prosecution Service (CPS) is cautious in its approach to prosecuting cases of ‘medical manslaughter’. Patients and families who allege medical malpractice have in the past looked to claims in clinical negligence for redress. Current proposals to remove legal aid from such claims may result in victims of medical malpractice in England seeking a criminal investigation of such malpractice more readily. They may look to France for an exemplar of a much broader role for the criminal process in holding doctors for account for clinical negligence. Two major factors of the French criminal process are key to an understanding of criminal responsibility for medical malpractice in France. French criminal law offers a greater range of potential criminal charges in the context of personal injuries caused by negligence. Second, the victim of any such injury can choose to use the criminal process as a partie civile to obtain compensation for her injury, rather than bringing a civil claim analogous to a claim in tort for clinical negligence. French substantive law thus provides greater scope for prosecutions and the French criminal process creates an incentive for victims of negligence to seek criminal charges. We look first at the evidence of the extent of the use of the criminal process in England gathered from research into files from the CPS. We note that one factor in the limited use of the criminal process on this side of the Channel is that the CPS are severely limited in the charges that can be brought. Next we outline the greater range of offences that could be charged in France in cases of injury caused by medical negligence and go on to examine the crucial role of parties civiles and some other parts of the French criminal process advantageous to victims of medical malpractice. We briefly explore whether in England greater use could be made of the criminal law before reflecting on whether greater resort to the criminal law on the French model would be desirable or damaging.
|Journal||Journal of Professional Negligence|
|Publication status||Published - 2011|