Tag Archives: criminal

Payment by results schemes – advice for the Government and advice for contractors

Advice for the Government
I heard on the radio today that the Government will establish a payment by results scheme for a service to reduce recidivism among offenders after a short (less than one year) jail sentence. Currently, approximately 60 per cent1 of such offenders are re-incarcerated within one year – the so-called ‘revolving door’2. Contractors will help released offenders find their way in life; for example by making a deal with housing associations to provide accommodation and providing other sources of support. These contractors will be remunerated in proportion to their success in reducing reoffending. However, the scientific evidence that this will work is not strong3 and there are a number of potential challenges to implementing such a scheme4. These include the potential for gaming of the system and ‘cherry-picking’ certain cases to maximise returns; the difficulty in measuring outcomes that cannot easily be defined or evaluated; where to obtain the payments from as not all savings made from a reduction in crime would be available as money, and that which is, would be from both public and private sectors; and the scale of change possible, as most successful interventions have only produced small changes in outcomes4,5.

More important, from the point of view of the remuneration, is that the extent to which it could work – the effect size – is poorly calibrated. This is because insufficient head-to-head trials have been conducted of different interventions to reduce recidivism. This places the taxpayer at considerable risk of either under and over paying for the service. The corollary is that – payment by results schemes should only be introduced where there is a good way of calibrating cause and effect consequences of the service. I know of what I speak, since I chair the scientific advisory committee for the payment by results scheme for the multiple sclerosis drugs. The idea here is that the drug companies would repay some of the costs of the drugs if they underperform, or the Treasury would provide a retrospective enhanced payment if the drugs worked better than expected. The problem here is that the effect of the drugs has only been properly calibrated after two years of use, whereas the scheme runs for ten years and is concerned with longer term outcomes. So, we have to try and work out whether the drugs are working better or worse than expected, not by means of a proper experiment (head-to-head trial), but by simply observing how well people do on medicine and trying to compare this with a retrospective cohort of patients. This is a very tricky and uncertain business. This problem, of working out how effective interventions are, leads me to advice for contractors.

Advice for contractors
As a contractor, I would choose my ground very carefully. I would try to provide services, in situations where there is likely to be a positive underlying trend. In that case, the underlying trend would contribute to my ‘results’. With the wind behind me I would have a very good chance of making a sturdy profit.

A third way
There is of course an alternative proposition. This would be to bring in the payment by results scheme as part of a prospective, carefully designed study. For example, the intervention (payment by results) could be rolled out sequentially across different parts of the country, where the order was determined at random – a so-called cluster stepped wedge design6. Such a study, if large enough, could be used not only to tell if the general idea of payment by results works, but also to determine which type of scheme is most effective. In other words, it would be possible to get a handle on which types of service provides best outcomes. The Cabinet Office has advocated such experimental approaches to public policy7. I strongly urge the Government to look at its own excellent plan of making policy on the basis of empirical evidence.

1. Ministry of Justice. Table 19a: Adult proven re-offending data, by custodial sentence length, 2000, 2002 to March 2011 in Early estimates of proven re-offending: results from April 2011 to March 2012. 2012 Available from: http://www.justice.gov.uk/downloads/statistics/reoffending/proven-reoffending-apr10-mar11-tables.xls (accessed 9 May 2013).

2. Cutherbertson P. The failure of revolving door community sentencing. Centre for Crime Prevention. 2013. Available from: https://docs.google.com/file/d/0B25IaOtJKlvwYjkxVENsbi1TbTg/edit?usp=sharing (accessed 9 May 2013).

3. Nicholson C. Rehabilitation Works: Ensuring payment by results cuts reoffending. London. Centre Forum; 2011.

4. Fox C, Albertson K. Is payment by results the most efficient way to address the challenges faced by the criminal justice sector? Probation Journal. 2012; 59(4):355-73.

5. Fox C, Albertson K. Payment by results and social impact bonds in the criminal justice sector: New challenges for the concept of evidence-based policy? Criminology & Criminal Justice. 2011;11:395.

6. Brown CA, Lilford RL. The stepped wedge trial design: a systematic review. BMC Medical Research Methodology 2006, 6:54

7. Haynes L, Service O, Goldacre B, Torgerson D. Test, Learn, Adapt: Developing Public Policy with Randomised Controlled Trials. Cabinet Office. Available from https://www.gov.uk/government/publications/test-learn-adapt-developing-public-policy-with-randomised-controlled-trials (accessed 9 May 2013).


Who will look after the patients when all the doctors have been locked up?

Professionals, doctors included, live in an increasingly regulated environment: not only is performance monitored on a regular basis, but doctors are subject to individual sanction. They may be scrutinised by the complaints procedure in the health service, they may be taken to the regulator (the General Medical Council), and they may be sued in the civilian courts under tort. On top of all this, they are subject to criminal prosecution.

Criminal prosecution implies a criminal act, and of course doctors should not be immune from prosecution for criminality, including crime perpetrated in the workplace. There was a famous case where a French anaesthetist sought revenge on a colleague by misconnecting the gas pipes in the operating theatre. The idea was that his colleague would be sanctioned for harm to a patient, but the ruse backfired and the guilty anaesthetist was quite properly locked up.

But what about acts of misjudgement? That is, acts where there is no question of criminal intent. The law, of course, does not require criminal intent for a deed to be punishable. For example, a drunk driver may still go to jail for running over a pedestrian even though he never set out to cause harm. The point here is that, by driving under the influence of alcohol, others were placed in harm’s way. The equivalent in healthcare would be criminal negligence – negligence so gross that harm could be foreseen, even if the specific harm that materialised was not intended. Thus, a doctor who operates drunk, or against the clock, can properly be found criminally negligent if a patient suffers. Things get more tricky, however, when there is no such turpitude – when there was simply a terrible mistake. It is quite difficult to argue this point in abstract so let us take a real example. I have heard of two cases where criminal prosecutions were started against a doctor when a patient, having been declared fit in accident and emergency, then died from heart attack on the way home. Yet, the diagnosis of heart attack is notoriously tricky in many cases. While it might seem to a lay person that there is a prima facie case of criminal negligence in such a scenario, this is most unlikely to withstand scrutiny. In cases above, prosecutions were not brought in the end. Nevertheless, doctors were suspended and lived under a cloud for many years. Having a criminal case hanging over you is no joke.

It seems to me that the criminal code should not be invoked in the first instance, unless there is some reason to believe there was real criminal intent, or that the clinicians had risked a patient’s safety by working in a general way which put patients at risk. My proposal is that more contentious cases should first be pursued through regulatory or civil processes. Only if these expose negligence to a criminal degree should the prosecution service get involved.

Of course it is not just doctors and other clinicians who are in the firing line; professionals of all types may be prosecuted. A recent case applied to six seismologists from the National Commission for the Forecast and Prevention of Major Risks (Franco Barberi, Enzo Boschi, Gianmichele Calvi, Mauro Dolce, Claudio Eva and Giulio Selvaggi) and the vice director of Italy’s Civil Protection Agency (Bernadro Bernardis) who have been sentenced to six years in prison in a criminal court for failing to provide adequate warning about a potential earthquake. In the event, a large earthquake followed, resulting in approximately 300 deaths, 1,500 injuries and left over 65,000 homeless, and the judge found that some people’s lives might have been saved, had a stronger warning been given.1 In fact, the judge in this case gave a harsher sentence than the prosecutor had requested (four years).2 Here is a case which was prosecuted in the criminal courts and where the accused were found guilty. Such a case is at enormous risk of hindsight bias. Predicting earthquakes is extremely tricky. Finding the right form of words to convey this uncertain risk is also extremely difficult. I have to confess sympathy with the convicted seismologists. They are currently appealing their harsh sentences, and it will be interesting to see if the appeal judge agrees.

Returning to healthcare, criminal prosecutions have escalated since the 1990s but convictions seldom follow.3 Misdiagnosis, the most important medical ‘error’, and the most common cause of civil litigation4 seldom forms the basis of prosecution, less a successful prosecution.

Robert Francis’ report has been interpreted in the media as saying: “Hospital staff and managers should face prosecution if patients are harmed or killed as a result of poor care”5 and indeed the report says: “Non-compliance with a fundamental standard leading to death or serious harm of a patient should be capable of being prosecuted as a criminal offence, unless the provider or individual concerned can show that it was not reasonably practical to avoid this. Reliance might be placed for that purpose on effective implementation of the procedures devised by NICE, but this would offer no defence to those who had not followed such a procedure.”6

So if you don’t follow a process laid down by the National Institute for Health and Clinical Excellence (NICE), then the criminal law can be invoked. This seems a high standard indeed given evidence on uptake of guidelines.7,8 The recommendation will need to be thought through rather carefully, I think.

1. Nature (2011). Scientists on trial: At fault? 14 Sep 2011. Available at: http://www.nature.com/news/2011/110914/full/477264a.html [Accessed 7 Feb 2013].

2. Nature (2012b). Italian court finds seismologists guilty of manslaughter. 22 Oct 2012. Available at: http://www.nature.com/news/italian-court-finds-seismologists-guilty-of-manslaughter-1.11640 [Accessed 7 Feb 2013].

3. Ferner RE, McDowell E. Doctors charged with manslaughter in the course of medical practice, 1795 – 2005: a literature review. J R Soc Med. 2006;99:309-314

4. Ferner RE. Medication errors that have led to manslaughter charges. BMJ. 2000;321:1212-1216

5. Guardian. Mid Staff report calls for sweeping changes to improve patient safety. http://www.guardian.co.uk/society/2013/feb/06/mid-staffordshire-report-sweeing-changes (accessed 7 Feb 2013).

6. Francis R. Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry Executive Summary. http://cdn.midstaffspublicinquiry.com/sites/default/files/report/Executive%20summary.pdf (accessed 7 Feb 2013).

7. Benning A, Dixon-Woods M, Nwulu U, Ghaleb M, Dawson J, Barber N, Franklin BD, Girling A, Hemming K, Carmalt M, Rudge G, Naicker T, Kotecha A, Derrington MC, Lilford R. Multiple component patient safety intervention in English hospitals: controlled evaluation of second phase. BMJ. 2011;342:d199.

8. Asch SM, Kerr EA, Keesey J, Adams JL, Setodji CM, Malik S, McGlynn EA. N Engl J Med 2006; 354:1147-1156