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Medical manslaughter

  • Published: April 10, 2018
  • Author: Christian Beadell, Senior Solicitor, Fletchers Solicitors

On 6 February 2018, Jeremy Hunt announced a rapid review into applying the offence of gross negligence manslaughter (GNM) to healthcare professionals. This flowed from the general outcry into the conviction of Dr Hadiza Bawa-Garba – a specialist registrar in the sixth year of her postgraduate training. She was held to be responsible for the death of a six-year-old boy, Jack Adcock, while under her care.

The tragic circumstances of Jack Adock's death highlighted a number of systemic failings in the management of his care, not all the responsibility of Dr Bawa-Garba. On 4 November 2015, Dr Bawa-Garba was convicted of manslaughter on the grounds of gross negligence and suspended for two years.

Dr Bawa Garba appealed the decision, but this was refused in December 2016. In light of her conviction, the GMC applied to have Dr Bawa-Garba removed from the medical register. This effectively overturned the decision of the Medical Practitioners Tribunal Service (MPTS) that Dr Bawa-Garba was otherwise fit to practise. One of the GMC's expressed aims was to seek confirmation that a doctor with a criminal conviction for manslaughter could not continue to practise. This was confirmed by the High Court and Dr Bawa-Garba, a doctor with a previously unblemished record, was removed from practice. She has lodged an appeal against the High Court decision and raised more than £360,000 from a crowdfunding site to support this.

Since that decision, significant concerns have been raised over the criminal prosecution of healthcare professionals in the English Courts for the offence of gross negligent manslaughter (GNM).

Review of the law on criminal prosecution of healthcare professionals

While the rapid review response is still awaited, the Medical Protection Society (MPS) announced that this was the right time to reconsider whether the general application of criminal law should be modified in the context of healthcare providers.

At present, the UK law on GNM is based on three tests.

1.      There was a breach of duty
2.     The breach of duty caused death
3.     The breach was 'grossly' negligent.

To determine what is meant by 'grossly', the Courts have indicated that the conduct was so bad in all the circumstances as to amount, in the jury's opinion, to a crime.

The law requires no finding that the defendant intended to cause harm or had any form of criminal intent.

A different legal framework in Scotland

By contrast, in Scotland, there is no law of gross negligent manslaughter. The nearest equivalent is the offence of involuntary culpable homicide. This offence is where there is no intent to commit murder but either there is a wicked recklessness or gross carelessness – such that the circumstances in which death was caused make it culpable homicide.

The Medical Protection Society (MPS) has proposed that the law in England and Wales moves towards the legal test for culpable homicide in Scotland. They believe that this is better suited to determining the culpability of a doctor in a patient's death.

They are also proposing that "the director of public prosecution authorises all GNM prosecutions involving healthcare professionals. This, as in Scotland, would ensure that the vital question of whether public interest is served by a prosecution is considered".

The MPS proposal is to be commended as a possible solution. However, from a patient's perspective, there will be concerns that there has not been a single successful prosecution against a doctor under the law of culpable homicide in Scotland. To some, this indicates that the Scottish approach is too lenient.

As a law firm committed to championing patients' rights and representing claimants, we are intrinsically aligned with the families of the bereaved and understand and support their passionate drive for justice. However, we also recognise that otherwise good doctors can make mistakes, particularly in a health system that is far from being without fault.

A distinction needs to be drawn between treatment in those circumstances and where a doctor intentionally or repeatedly treats a patient in a negligent manner. It is vital that the law protects patients from the rogue or cavalier doctor who wilfully neglects his or her patients' needs. But past scandals, such as Dr Shipman and Ian Patterson, would still have been dealt with under alternate criminal laws without the need to rely on GNM.

In the context of a single innocent mistake where the intention was to do no harm, is it in society's interests to imbue those actions with the hue of a criminal? Is it preferable to have a starting point where we assume that a doctor's motivation is benign and work down from there?

We support the MPS' call for a review of the current law and how it applies to doctors and other healthcare providers. The rapid review needs to consider if there should be a softening of the law in England and Wales to align more closely with the Scottish system. Any system must ensure that grossly negligent actions are punished but due consideration must be given to the motivation and intent behind the act. We are of the view that it is not in society's interests to criminalise the medical profession unnecessarily, as this will serve to undermine its position and encourage a loss of faith.

Learn more about Christain Beadell and Fletchers Solicitors.

 

 

 

 

 

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