Shadow of the law in cases of avoidable harm
BMJ 2016; 355 doi: https://doi.org/10.1136/bmj.i6268 (Published 24 November 2016) Cite this as: BMJ 2016;355:i6268
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Liam Donaldson’s Editorial makes important points about the haphazard way in which doctors come to be charged with gross negligence manslaughter. Griffiths and Sanders noted that ‘Criminal investigations into medical deaths have three main sources: relatives
making complaints to the police directly, a hospital [sic] contacting the police, or a coroner
becoming concerned that there is some something unnatural or suspicious about a
death and referring it to CID.’[1]
We do not know the true numbers of cases investigated by the police, or referred to the Crown Prosecution Service for a decision on prosecution, or subsequently prosecuted—the Crown Prosecution Service does not recognize any sub-category of ‘medical manslaughter,’ which comprises only a small part of all involuntary manslaughter. Media reports showed that during the last 12 months two GPs, a gynaecologist, a paediatric specialist trainee, and two anaesthetists, along with eight nurses and an optometrist were charged with or tried for gross negligence manslaughter. This harrowing exercise resulted in just three convictions
It is in everyone’s interest that healthcare become safer by careful investigation of error—especially fatal error—and by action to prevent its recurrence. Sir Liam makes clear that criminal trials are focused on blaming one or a few individuals, and neglect the systems failures that lie behind errors. Patients and doctors would be safer if an independent inquiry were guaranteed, and the criminal law could be reserved for those doctors who show “such disregard for life and safety as to amount to a crime against the state.” [2,3] Independent inquiry may come with the establishment of the Healthcare Safety Investigation Branch.
But what amounts to ‘a crime against the state?’ The Court of Appeal did not quash David Sellu’s conviction because new evidence exonerated him, but because the trial Judge’s summing up failed to spell out clearly enough the meaning of ‘gross’ or to state that it is for the jury to decide whether negligence was ‘gross,’ not medical experts.[4] Perhaps the law needs revision. ‘The test of recklessness or wilful neglect, pursuing the doctor “who does not care rather than the doctor who tries to care and fails,”’[5] would be better: it would make healthcare safer by allowing us to be open about errors we might all have made, while deterring acts that no caring doctor would commit.
Acknowledgement: I am very grateful to colleagues who read a first draft of this response.
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[1] Griffiths D, Sanders A. The road to the dock: prosecution decision-making in medical manslaughter cases. in Sanders A, Griffiths D (eds), Bioethics, Medicine and the Criminal Law: Medicine, Crime and Society vol. 2, Cambridge University Press, Cambridge. 2012: 117–158
[2] Ferner RE. Medication errors that have led to manslaughter charges. BMJ 2000; 321: 1212–6
[3] McDowell SE, Ferner RE. Medical Manslaughter. BMJ 2013; 347: f5609
[4] Sellu v The Crown [2016] EWCA Crim 1716 (15 November 2016). http://www.bailii.org/ew/cases/EWCA/Crim/2016/1716.html. Accessed 25th Novmeber 2016
[5] Brazier M, Alghrani A. Fatal medical malpractice and criminal liability. J Prof Negl
2009; 2: 51–67
Competing interests: Competing interests: REF has acted as an expert witness in trials for manslaughter.both for the Prosecution and the Defence.
Prosecutions for medical manslaughter should be rare.
In discussing some recent cases of medical manslaughter, Donaldson wrote that many other health professionals think the threshold for criminal prosecution was not reached. Indeed, they could well have acted in the same way in similar circumstances and they may have been lucky that there was no adverse outcome[1]. Furthermore, Donaldson mentioned that a blame-free approach is preferable for future safety in health care because it facilitates investigating systemic factors. These are good arguments against the current practice, but the analogy with drink driving will make clear that there are other arguments.
Many people drive while under the influence of alcohol and, if they are not asked by the police to supply a breath sample after an accident or during a routine check, there will be no criminal prosecution and they have been lucky. It is questionable whether criminal prosecution with the possibility of a jail sentence reduces accidents caused by drink driving[2]. Perhaps other measures such as making alcoholic beverages more expensive or ignition interlock devices are more effective. However, drink driving it is against the law, hence, there are many prosecutions for drink driving, even though many people do it unnoticed and it might well not be the best way to improve road safety.
In medical manslaughter cases, there is no simple rule the convicted health professionals did not adhere to. By contrast, there is a large amount of external guidelines, internal operational policies and scientific literature which often can only be applied in specific circumstances and these guidelines, journal articles, etc. do not have an equivalent status as criminal law. It remains unclear what a health professional should have known. This is another important reason to be hesitant in starting criminal prosecution for medical manslaughter as one cannot establish a clear standard.
References
1 Hubbeling D. Medical Error and Moral Luck. HEC Forum 2016;28:229–43.
2 Yu J, Evans PC, Clark LP. Alcohol addiction and perceived sanction risks: Deterring drinking drivers. J Crim Justice 2006;34:165–74.
Competing interests: No competing interests