Doctors being ‘criminalised for momentary errors’
Doctors are being ‘criminalised for momentary errors’ because the standard of evidence required to convict them of gross negligence manslaughter is too low, the Medical Protection Society has said. The lobbying group is calling for the law in England and Wales to be made the same as the position in Scotland, where charges are only brought against doctors if an act is proved to be intentional, reckless or grossly careless.
The society was responding to Sir Norman Williams’s review into healthcare and gross negligence manslaughter laws which was instigated after the conviction and striking off of Hadiza Bawa-Garba.
The trainee paediatrician was found guilty of gross negligence manslaughter in 2015 over the death of six-year-old Jack Adcock, having been initially informed by the CPS in 2012 that she would not be prosecuted, after he developed sepsis in 2011. The prosecution argued that the decisions and omissions of Dr Bawa-Garba were so serious, and her conduct fell so far below the standard of care expected by competent professionals – ‘truly exceptionally bad’ being the test set for the jury – that she was guilty of manslaughter by gross negligence.
A tribunal decided that she should remain on the medical register despite the conviction but in January the General Medical Council (GMC) succeeded in getting Dr Bawa-Garba erased from the register after taking the case to the High Court. The High Court concluded that the Tribunal was wrong to disregard the verdict of the jury and reach its own views as to the level of culpability and had not taken sufficient account of the statutory duty to consider public confidence in the profession.
However, many doctors reacted angrily to the GMC’s measures, raising concerns that many of the issues raised by the case – such as dangerous levels of understaffing, failure of IT systems, and staff being forced to work in inappropriate conditions – had been ignored.
In the aftermath the GMC suggested a review to explore how gross negligence manslaughter is applied to medical practice, in situations where the risk of death is a constant and in the context of systemic pressure. The review has brought together health professional leaders, defence bodies, patient, legal and four criminal justice experts from across the UK.
Jeremy Hunt told the House of Commons that the aim of the review was to ‘ensure the vital role of reflective learning, openness and transparency is protected so that mistakes are learned from and not covered up’ and provide ‘clarity about where the line is drawn between gross negligence manslaughter and ordinary human error in medical practice’.
GMC chief executive Charlie Massey said a review into whether gross negligence manslaughter laws are fit for purpose in healthcare in England was welcome. ‘Doctors are working in extremely challenging conditions, and we recognise that any doctor can make a mistake, particularly when working under pressure,’ he said.
The current law in respect of gross negligence manslaughter is known as the Adomako Test. The four stages are the existence of a duty of care to the deceased, a breach of that duty of care, which then causes (or significantly contributes to) the death of the victim, and that the breach was grossly negligent—meaning that the departure from the proper standard of care was so serious it is judged as criminal. Another element of the test is that the conduct was ‘truly exceptionally bad’, as set out in the case of Misra  EWCA Crim 2375.
The Medical Protection Society has criticised the law for placing the evidential bar too low, which was resulting in good doctors being ‘criminalised for unintentional and often system-wide mistakes that are devastating for all involved’. It is argued by the society the law shifts more into line with the legal test for Culpable Homicide in Scotland – which has seen one attempted prosecution resulting in acquittal – as it is ‘better suited to determining the culpability of a doctor in a patient death and whether a prosecution is in the public interest’.
‘The public and medical profession would expect that extreme cases where there is intent to cause harm or a high degree of recklessness result in prosecution, and we support that,’ Rob Hendry, medical director at the society, said; adding that most medical manslaughter cases were ‘more complex’.
‘A striking feature of the law in England and Wales is that intent, carelessness or recklessness is not required for a conviction. The legal bar is too low and it is hard to see who benefits: a family has lost a loved one through tragic circumstances, a doctor may lose their career and face a prison sentence, the NHS has lost a valuable doctor, and fear of personal recrimination becomes increasingly embedded across healthcare.’
Nick Barnard, a lawyer at the London law firm Corker Binning, was reported in the Times as saying that ‘making a significant change to the criminal law is an extreme step’. He also said that the Medical Protection Society was right to say that most medical cases are more complex than other gross negligence manslaughter cases.
Barnard said: ‘However, it would perhaps be better for this complexity to be dealt with by a clearer and more considered CPS policy, which takes into the account the challenges of providing medical care in the current climate and the public interest in prosecuting mistakes made under pressure.’
BMA chair Dr Chaand Nagpaul said that there was concern that ‘a growing number of prosecutions of doctors for gross negligence manslaughter results in doctors becoming more cautious’. ‘This makes it more likely that they will practise defensive medicine, which is not in the interests of patients,’ he said.
Charges of gross negligence manslaughter against medical practitioners are extremely rare. Additionally, in the past four years the GMC have reduced the number of investigations of single clinical incidents by 56 per cent. The number of full investigations is also falling, from 2,265 in 2011 to 1,436 in 2016. The number of sanctions and warnings fell by eight per cent in the same period. There has been a 12% fall in doctors receiving conditions or undertakings and a drop of almost a third in doctors receiving warnings.
Author: Charlotte Hughes
Charlotte is currently training to be a barrister as a pupil at East Anglian Chambers. She was previously a Kalisher Intern at the Criminal Cases Review Commission