Gross Negligence Manslaughter in Medical Contexts
Throughout the UK, the vast majority of doctors treat and cure patients to their best of their ability day in, day out and with successful outcomes. Unfortunately, rare mistakes or other failures can have serious consequences, as widely reported from time to time. Here, we review what constitutes gross negligence manslaughter (GNM), along with the impact both on patients and the doctors concerned.
Will a doctor convicted of manslaughter always be unsafe? Indeed, two doctors who make a similar mistake might well experience somewhat different outcomes – even if the negligence is deemed gross. Clinics and hospitals that operate adequate controls and governance benefit from an extra layer of safety checks to help genuine mistakes causing severe harm. In contrast, however, systemic failings at other locations could equally lead to unfortunate, shattering consequences.
Fatalities Due to Negligence
Fatalities due to negligence are at once sad and tragic; patients or their next-of-kin who have experienced it will become claimants needing assistance. Recently, such a case involved Jack Adcock, a six-year-old who died while in the care of Doctor Hadiza Bawa-Garba at Leicester Royal Infirmary. A paediatrician and specialist registrar with a previously unblemished record, Dr Bawa-Garba had six years post-graduation experience. According to reports in the Leicester Mercury (January 2018), the youngster had Down’s Syndrome and was unwell with a heart condition. Hospital blunders led to his death, principally caused by a failure to diagnose sepsis in time. The doctor also wrongly assumed that the child was subject to a DNR (do not resuscitate) order.
As a result, the medical tribunals service suspended Dr Bawa-Garba for twelve months. Subsequently, the GMC (General Medical Council, the doctor’s regulatory body) elevated the disciplinary measures to remove her from the medical register. In the prosecutors’ opinions, this striking off ensured sufficient protection for the public. On subsequent appeal, the High Court upheld the measure, despite reports alleging multiple failures and deficiencies in the NHS hospital concerned and suggestions that the doctor had become a scapegoat.
Similar, an agency nurse who had also had some responsibility for part of the child’s treatment appeared before the Nursing and Midwifery Council. For what it found to be gross negligence, the council struck the nurse’s name off the list of authorised nurse practitioners.
Systemic Failures and Sheer Misfortune
Observers have noted that currently, convictions that lead to the erasure of doctors from the central register do not take into account whether systemic failures and sheer misfortune have played a part, nor whether the doctor involved is capable of improving. In the Bawa-Garba case, the backlash from medics included thousands of letters in support of the doctor, while others pointed to NHS staff shortages, lack of resources and widespread failures that probably contributed to the patient’s demise. In protest, many doctors ripped up their GMC registration documents while other medical colleagues launched a crowdfunding appeal to help pay for Dr Bawa-Garba’s legal costs.
On 6th February 2018, the Secretary of State for Health and Social Care, Jeremy Hunt, announced that Sir Norman Williams would chair a rapid review of GNM with specific relevance to healthcare. A professor and British surgeon, Sir Norman has also served as President of the Royal College of Surgeons (RCS). After his appointment, he issued a statement announcing that the inquiry would examine the processes involved in individuals facing allegations before their professional governing body and in the criminal courts. Notably, Sir Norman mentioned that there could be lessons for regulators, too. He went on to emphasise that he and his panel would not recommend whether the law relating to GNM should change. Instead, deliberations would focus on the application of legal principles to such cases, see where the bar was and where to set it for future prosecutions.
Under its terms of reference, the inquiry would hear from patients, healthcare staff, employers and prosecuting lawyers. Experts would clarify the difference between gross negligence and ordinary mistakes, as well as define how to draw the line between the two. Consequently, medical staff should better be able to understand their possible position concerning liability and criminal charges.
Charlie Massey, chief executive of the GMC, welcomed the review and stated his belief that there had been issues with GNM for some considerable time. For its part, the BMA also supported the inquiry and emphasised the importance of doctors’ reflections to encourage openness and learning.
On a similar note, the Croydon-based charity AVMA (Action against Medical Accidents) has patient safety and justice at the centre of its mission. AVMA is concerned that media misreporting of GNM cases may affect recruitment, morale and retention rates in health professionals. Current levels of ill feeling among doctors are one of the organisation’s concerns and its head, Peter Walsh, has given evidence accordingly.
Experts have come to question whether the criminal law in England and Wales requires modification viz. healthcare providers. In Scotland, GNM does not exist as an offence. Instead, where there is no intent to commit murder, a charge of culpable homicide applies with contributing factors of wicked recklessness or gross carelessness, depending on the circumstances.
Other commentators suggest that the DPP (Director of Public Prosecutions) should authorise all GNM prosecutions involving healthcare professionals, as already happens north of the border. Such a measure would ensure that proceedings served the public interest. However, as there have not been any successful prosecutions to date under the current Scottish regime, critics suggest it might be too lenient.
In summary, then, affected patients, claimants and the family of the bereaved are understandably passionate in their drive for justice. On the other hand, otherwise good doctors who have to work hard to achieve the best results they can with finite (and often limited) resources are themselves only human – and susceptible to occasional errors. In considering society’s best interests, it may not be wise to bear down too hard in such circumstances, which are distinct from situations where a doctor repeatedly treats a patient negligently, possibly intentionally.