Fear of prosecution
In the light of some recent court cases concerns have risen that an increasing number of doctors are being prosecuted for gross negligence manslaughter. Alexandra Mullock asks whether it is time to reconsider how such cases are determined.
The legal test for Gross negligence manslaughter (GNM), a common law offence that carries a maximum sentence of life imprisonment, has been incrementally developed by the courts, leading to confusing variations and uncertainty over what the law demands.
However for health professionals any charge of GNM starts from the same principles as a clinical negligence claim. There must be a duty of care which is breached and which causes fatal harm in cases of GNM. It must be proven that the professional’s negligence caused death and that the conduct of the defendant was grossly negligent. The question of whether the negligence is gross is usually the most difficult to determine.
Risk of prosecution
The risk of prosecution for health professionals has always been very small. However concerns have risen in the light of some recent court cases that increasing numbers of doctors are being prosecuted. Indeed, the potentially damaging impact of GNM on the medical profession was the main driver for the recent review led by Sir Norman Williams.
That review made a number of recommendations concerning criminal justice, professional regulation and the systems for supporting both healthcare professionals and bereaved families. While it was not intended to lead to legal reform, some of the recommendations are meant to improve the criminal justice system and reassure the medical profession.
For example, following the recent treatment of Dr Bawa-Garba, who was permanently struck off the medical register after her GNM conviction, Williams recommends that the General Medical Council should lose the right to appeal against (lenient) decisions made by the Medical Practitioners Tribunal Service.
Fear of prosecution
With a team of colleagues I have examined how, even if fear of prosecution is misplaced or conflated with other (civil liability or disciplinary) risks, it can be damaging, resulting in defensive practices and even a reluctance to practise in more risk-prone medical specialisms.
The Williams Review highlighted how poor understanding of GNM leads to unnecessary professional anxiety in healthcare. Attempts to improve knowledge of GNM might be most effective if medical education included more engagement with the law. While the incorporation of medical ethics within clinical education is well-established, medical law may be seen as less important.
Improved understanding of relevant legal principles would reduce anxiety over the (sometimes exaggerated) legal perils associated with clinical practice, not only in respect of GNM but also in relation to civil negligence and consent.
Test for GNM
As mentioned, the legal test for GNM has been incrementally developed by the courts. The leading modern authority is the case of Adomako, which involved a locum anaesthetist who failed to monitor the supply of oxygen during minor surgery. The Court of Appeal rejected Dr Adomako’s appeal against conviction and outlined four test questions to determine when negligence is gross for GNM.
Namely, did the doctor show obvious indifference to the risk of injury to his patient? Was he aware of the risk but nonetheless (for no good reason) decided to run the risk? Was an attempt to avoid a known risk so grossly negligent to deserve punishment? Was there a degree of inattention or failure to have regard to risk, going beyond mere inadvertence? Adomako appealed to the House of Lords (then our highest court), who also rejected his appeal and endorsed the approach of the Court of Appeal.
Threshold for liability
Recently the threshold for liability appears to have shifted in a subtle but potentially significant way following two cases which were heard by the Court of Appeal. The cases of Rudlingand Rose both involved healthcare professionals who failed to diagnose fatal conditions leading to the death of two children.
In the Rudling case the Court held that the defendant GP had no case to answer because the serious risk of death from undiagnosed Addisons disease was not obvious to Dr Rudling. This was because Dr Rudling had not assessed the patient, as she had declined to visit him at home after his mother said he was too ill to visit the surgery.
The court stated that the information conveyed to Dr Rudling did not necessarily indicate the very serious nature of the patient’s condition, thus she could not be held responsible for GNM even if - in failing to visit the patient, or alternatively call an ambulance - Dr Rudling might have fallen below the standard expected of a reasonably competent GP.
In the Rose case, the defendant optometrist had seen the patient in person but failed to examine him adequately. She did not view the correct (fundas) image taken of the inner eye or view the patient’s eye during her examination. Registered optometrists have a statutory obligation to examine the inner eye and so there was no doubt that Ms Rose had been negligent. Her negligence meant that she missed the obvious sign (papilloedema) that her patient had a dangerous brain swelling and he died five months later.
“It must be proven that the professional’s negligence caused death and that the conduct of the defendant was grossly negligent.”
In the Rose case the trial judge distinguished the facts from Rudling because there was no obstacle to prevent the defendant from fully investigating the patient and, by failing to inspect the inner eye, she breached a statutory duty of care that is imposed on registered optometrists.
Ms Rose was initially convicted of GNM and given a two year suspended sentence. On appeal, however, the Court of Appeal concluded that the trial judge had taken the wrong approach. Ms Rose was not guilty of GNM because the risk of which she was aware was not an obvious and serious risk of death, but rather a risk that there might be a serious condition. It mattered not that her own negligence had prevented her from becoming aware of the papilloedema.
This case has been criticised for introducing a subjective element to the legal test, rather than maintaining the correct objective approach to the question of whether the defendant’s behaviour was grossly negligent. It remains to be seen whether our highest court, the Supreme Court, will endorse the approach taken by the Court of Appeal in future cases.
Later this year a second review of medical GNM by the General Medical Council, led by Dame Clare Marx, will report on similar issues to the Williams Review.
The Marx Review is likely to recommend that improving understanding of GNM, within the medical profession and across all agencies responsible for investigating fatal medical error, is an important objective.
Meanwhile in the criminal courts the Rose approach suggests that defendants able to show that they simply did not realise that there was a serious risk of death - because it was not obvious to them, even if it should have been – will not be liable. In many instances that might be a fair conclusion but where gross negligence has led to individuals failing to appreciate a serious risk of death, the Rose approach is problematic.
Dr Alexandra Mullock is a Senior Lecturer in Medical Law.