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Gross Negligence Manslaughter: could a special argument be made for the medical profession?
  • Nov 6, 2020
  • Latest Journal

By Mr Surash Surash

 

Consultant Neurosurgeon
FRCS (Neuro.Surg), MD, LLM with Commendation

The difficulty for medical professionals is the work they deal with involves patients who have the potential to die from an error. Compounding this risk are certain procedures and operations that can have significant morbidity and mortality associated with it.  But consider for a moment the impact of not proceeding with high risk operations that would result in a definite chance of death.  As Merry and Brookbanks explains, these dilemmas can often be ‘fraught with risk and considerable uncertainty.’ Could it then be argued, that a special case can then be made for doctors, thereby giving them a privileged status in Law?

We must consider the actions of other professionals such as accountants or lawyers, whose professional negligence would not result in the death of a client, and as Brazier quite rightly argues, would not necessarily attract the same degree of media publicity. But a solicitor or an accountant that intentionally defrauds a client would be accountable to criminal proceedings.  However, in medicine, negligence that results in the death of a patient, thereby resulting in criminal proceedings, does not necessarily mean that an intent to cause harm exists.

Teachers and managers of youth adventure holidays have been prosecuted for GNM for children in their care who have died.  Brazier gives the analogy of the teacher who has the choice of not letting his pupils ‘jump into a mountain stream.’ However, does a doctor faced with life-threatening diseases have that same choice?

The support for a conviction of GNM in medicine comes from many different academic directions, and there are those that see it as a driver for improving standards. However, does the threat of criminal sanction actually make us into better doctors?  

So could criminal liability act as a deterrent to further deaths?  To do this, would be in some way to stop intent to murder.  However, as evidenced in case law over the last 20 years, intent to cause death has not been proven in the vast majority of cases.

Any decision to therefore pursue criminal prosecution must be based on gross recklessness rather than making a common mistake due to ‘system failures and inadequate training.’  Again, a distinction must be made between ‘wilful disregard to human life’ compared to death as a result of an ‘unforeseen complication.’

Even a competent experienced doctor is vulnerable to mistakes, but it is at what stage should the CPS become involved?  For a lacuna exists between negligence that does not result in death and one that does.  For why would the death of a patient give rise to criminal prosecution whereas permanently disabling a patient from someone’s negligence does not?  This forms the underlying principle of ‘moral luck.’

It is important to remember that not all medical errors are the same.  Ferner and McDowell have classified errors as; slips/lapses, mistakes, technical errors and violations.  A slip/lapse occurs when there is an error in the execution of an action (momentary loss of concentration).  Mistakes occur where there is an error in the planning of an action.  And technical errors occur where there was a failure to carry out a plan of action successfully.  Whereas ‘violations’ occur when there was a ‘deliberate deviation from safe practice.’

Ferner and McDowell make the point that where ‘mistakes and slips (lapses)’ have occurred, the prosecutions in these situations were ‘unlikely to improve patient outcome.’  Whereas, as Hubbeling explains, there is far less controversy over the ‘violations’ group in GNM cases.  

This can be better explained by the analogy given by Hubbeling of the driver that hits a tree out of bad luck.  But should a child get in the way, and the driver has a brief lapse in attention and kills the child, then a conviction becomes problematic, as the driver may not have been able to stop in time anyway.  It is therefore for the Courts to decide if the driver could have stopped the car in time, or could have foreseen the child running in front of them.  And is the error of not stopping of sufficient ‘criminal severity’ to pursue prosecution?  However, if there was a clear rule violation, such as the driver being drunk at that time, then the pursuit of conviction becomes clear.  So as Hubbeling explains, prosecution should only happen in situations where there has been a clear violation of rules (drink driving, etc.) and not just for errors.

In which case, in medicine, can clear violations be defined so we can rule out errors as a basis for criminal prosecution?  Intoxication, or the use of drugs whilst working, could both be counted here.  But where unintentional errors occur, in the absence of any violation of the law (objective rules) or conscious deviation from recognised clinical guidelines, then the basis of criminal prosecution must come into doubt?  

Add to this, is how much control do people have over the situation that goes wrong?  And how much of that is personal (human factors), or indeed systemic failures?

Once we can exclude exogenous causes, we must then concentrate on the endogenous factors; the doctor at the end of the bedside.  We must also consider how a Court can distinguish between the actions taken by a competent versus an incompetent doctor at the same stage of training.  It is the ability to separate out the actions of a doctor acting with criminal intent (mens rea) compared to the actions of an incompetent doctor. As argued in the Rose case, can there be a clear separation between the competent doctor making a choice compared to a doctor that was not competent?  And how does a jury discern between the doctor that ‘cares and fails’, or the doctor that demonstrates recklessness?  As Lord Atkin states, the accused must be proved to have had ‘criminal disregard for the safety of others’ or ‘the grossest ignorance or the most criminal inattention.’

What the Sellu, Misra and Rose cases showed, was that for a safe conviction of GNM to be established, there must be a ‘serious and obvious risk of death to be present.’ The Rose case showed that if the defendant was unaware of what that risk was, then there was no grounds for a conviction of GNM to be found.  So there must be ‘risk appreciation’ and ‘foresight of death.’ A distinction as Mullock argues, must exist between the knowledge and actions of a reasonably competent individual had they been placed in the same situation. But would a competent person then have the same degree of negligent ignorance, i.e.; would the foresight of death been apparent with the competent practitioner? So does this mean, that if the defendant who has appreciated the risk is culpable compared to the defendant who has not appreciated/assessed the risk who is therefore no longer culpable (as was the case with Rose)?  Would this then create a lacuna in the law where competent practitioners who can see risk will face GNM and those who are not competent to assess risk, will not face criminal proceedings?  As Mullock argues, what the Rose case did was to change the threshold for GNM to determine if the ‘defendant knowingly take [took] a risk with the victim’s life.’

Earlier, we discussed the benefit of maintaining a threat of a GNM conviction would be that doctors would be averse to criminal prosecution and therefore be more careful in their decision-making.  However, as Vaughan argues, criminal investigations could impact negatively on a culture of learning and development in healthcare.

There is a risk that doctors would decline working in departments that are already understaffed, unsupported with an over-stretched workforce that are vulnerable to making mistakes.  Could this instead be the natural outcome that a threat of criminal conviction would have?  And by doing so, does this then further drive the mistakes that happen by already understaffed and under-resourced wards and in so doing, damage health care delivery further?  

Will GNM make doctors more conscious about their own state of mind, whether they are exhausted from a night shift or travelled the night before a shift at work? And what impact would this have on doctors taking up shifts when covering poorly staffed rota’s?

Brazer puts forward two possible consequences that the fear of criminal prosecution would have on doctors; first it would make doctors leave, not take up high risk specialties or perhaps not take up medicine in the first place, and secondly, a move towards a greater ‘defensive medicine’ which in itself could negatively impact on medical developments and patient care.

Even before careers in medicine begin, Elias-Jones predicts that an increasing risk of GNM convictions would reduce recruitment and therefore exposure to high-calibre staff, and affect the way medical students wish to pursue front-line high-risk specialities.

A criminal prosecution for medical errors may only achieve the need for retribution by family members or the media, however, singling out doctors in the presence of an imperfect NHS system, may result in great difficulties to ‘foster an open culture’ which would only serve to keep ‘faults in the system … remain hidden, and more patients will die.’

Beyond this are the families of those that have died as a result of medical negligence.  How would a non-criminal action meet their needs of redress for the loss they have suffered?  And in the same way, would the public consider financial compensation for medical errors resulting in death to be appropriate and would this serve to maintain the confidence that the general public have in the medical profession and its regulators?

Could one way of supporting public confidence be to put responsibility on the employing NHS Trusts?  Could the threat of GNM force NHS organisations to change what they do?  In the current climate where NHS organisations are not held accountable in GNM convictions, what incentives are there for NHS organisations to ever change or address their failings?  Surely a conviction of GNM must come hand in hand with any identifiable systemic failings and a conviction of corporate manslaughter too?  Could the risk of this prompt employing Trusts to change their practice’s and the way their workforce is employed and educated?

In the case of Dr Daniel Ubani, there are two very significant factors that must be considered; the doctor with personal exhaustion (having flown from Germany with only 3 hours of sleep), and the limitation in being able to speak English (German speaking).  You then must also consider the employer; the NHS organisation that is prepared to employ someone flying in from Germany, with limited communication skills and unfamiliar with UK medical systems. As Brazier argues, should it then be the employing organisation that should actually be held accountable (for corporate manslaughter)?  

It must therefore be recognised that both human and systemic factors influence cases of GNM, in keeping with Lord Mackay’s original description of GNM in the Adomako case, where a ‘breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred.’  And thereby supporting the view, that a special case in medicine must be made when the Courts opine on a conviction of gross negligence manslaughter.



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