On 6 February 2018 Jeremy Hunt announce a rapid review into the application of 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 into the 6th year of her postgraduate training, who was held to be responsible for the death of a six year old boy, Jack Adcock, whilst under her care.
The tragic circumstances of Jack Adock’s death highlighted a number of systemic failings in the management of his care , with 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 2 years.
Dr Bawa Garba appealed the decision but this was refused in December 2016. In light of her conviction the GMC, the professional regulatory body for doctors, applied to have Dr Bawa-Garba removed from the medical register, effectively overturning the decision of the MPTS (Medical Practitioners Tribunal service) that Dr Bawa-Garba was otherwise fit to practice. One of the GMC’s expressed aims was to seek confirmation that a doctor with a criminal conviction for manslaughter could not continue to practice. This was confirmed by the High Court on 25 January 2018 and Dr Bawa-Garba, a doctor with a previously unblemished record, removed from practice. She has lodged an appeal against the High Court decision and has raised over £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)..
Whilst the rapid review response is still awaited, the Medical Protection Society announced on 13 March 2018 that now was a 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:
- The Defendant owed a duty of care to the victim
- There was a breach of duty
- The breach of duty caused death
- 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.
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 move towards the legal test for culpable homicide in Scotland, as 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 patient’s rights and representing Claimants we are intrinsically aligned with the families of he 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 which 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 patient’s 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 upon 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?
In our view, we support the MPS’s call for a review of the current law and how it applies to doctors and other healthcare providers. The rapid review should 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 that due consideration to the motivation, and intent behind the act must be accounted for. 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.
Senior Solicitor at Fletchers Solicitors