Plenary II –Legal Risks & Professional Ethics in Clinical Incidents

A number of criminal prosecutions brought against healthcare professionals over patient deaths, both locally and overseas, have given rise to notable consternations in recent years. This paper begins with an overview of the applicable criminal offence of gross negligence manslaughter, followed by discussions on the threshold for prosecution, the issue of moral luck, and the implications that the current direct of travel might have for our professional culture and the public interest. References are drawn from recent developments in the United Kingdom, where two high-level independent reviews have identified several mitigating measures against the potential trend and detrimental effects of over-criminalisation1-2. 


It is argued that a distinction ought to be drawn between "honest mistakes"-made without intent to cause harm or recklessness as to the risk of harm- and conscious (or reckless) violations of established rules and standards; and that "medical manslaughter" cases ought to be handled with exceptional care not because healthcare professionals are an exception to the law, but because of the exceptional damage that a single case might do to the integrity and values of our healthcare system. 

Clinical incidents refer to unintended harm or injuries caused to patients during medical treatment or care.  They carry significant legal risks and professional ethical considerations for frontline doctors.


Legal risks
(1) Civil claims: Doctors may be sued for medical malpractice if the patients believe that the doctor's actions or inactions caused them harm or injuries.  If the doctors are proven to be negligent or provided substandard care, the doctor may face legal liability for damages.


(2) Medical council disciplinary hearings: Doctors who are accused of malpractice may also face investigations from Medical Council of Hong Kong where suspension or revocation of licenses are possible.


(3) Criminal charges: In extreme cases, doctors may face criminal charges for gross negligent manslaughter.  For example, a doctor who intentionally or recklessly causes harm to patients may be charged by the criminal court.


Professional ethics
(1) Duty to disclose: Doctors have a professional and ethical obligation to disclose clinical incidents to their patients and their families based on the open disclosure policy of the healthcare organizations.


(2) Duty to report: Doctors have a duty to report clinical incidents to their employers and regulatory bodies as part of standard incident management procedures.


(3) Duty to apologize: Doctors have a professional and ethical obligation to apologize to patients and their families for clinical incidents.  A proper apology may prevent the situation from escalating and may facilitate healing and closure for the patients and their families.


To manage the risks and obligations, doctors and the healthcare organizations should work together in providing clear policies and procedures in place for reporting and responding to clinical incidents.  They should also communicate openly and transparently with patients and their families, and seek support from colleagues and professional organizations as needed.


(Declaration: This abstract was prepared with the help from ChatGPT.)