Who should we blame for healthcare failings? Lessons from the French tainted blood scandal

Kazarian, Melinee 2019. Who should we blame for healthcare failings? Lessons from the French tainted blood scandal. Medical Law Review 27 (3) , pp. 390-405. 10.1093/medlaw/fwz004

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Abstract

Many well-known cases of ‘medical manslaughter’ have shown that systemic issues play a significant role in contributing to fatal errors in healthcare institutions. The most prominent NHS scandal, Mid Staffordshire, demonstrated that wrongful prioritization of resources and shortage of staff had contributed to the death of between 400 to 1200 patients due to appalling care by nursing staff and doctors between 2005 and 2009. Following the scandal, the Trust was prosecuted and convicted of a criminal offence under the Health and Safety at Work Act 1974 in 2014 and 2015. In contrast, in a scandal of comparable scale across the Channel, ‘the HIV-contaminated blood scandal’, individual decision-makers were subject to criminal convictions. Learning from features of the French criminal process, and the aftermath of the 1980s French tainted blood scandal, this article argues that the criminal process can only be a useful response to healthcare systemic failings if higher-level decision-makers are also included in the scope of criminal liability when they have recklessly endangered patients. When no individual reckless fault is found on the part of decision-makers, corporate criminal liability is a suitable alternative to individual criminal liability, if it is focused on ensuring safety and offering justice to patients who have been harmed as a result of healthcare systemic failings.

Item Type:	Article
Date Type:	Publication
Status:	Published
Schools:	Cardiff Law & Politics
Publisher:	Oxford University Press
ISSN:	0967-0742
Date of First Compliant Deposit:	1 March 2024
Date of Acceptance:	1 February 2019
Last Modified:	11 Nov 2024 03:45
URI:	https://orca.cardiff.ac.uk/id/eprint/166759

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