The criminal law looks set to play a larger role in regulating healthcare. Until recently, health professionals only faced the prospect of criminal liability if it could be proved that their gross negligence resulted in the death of a patient. In such a case, the professional could face a charge of gross negligence manslaughter (GNM). Prosecutions for ‘medical manslaughter’ have generated concern among doctors worried about what is perceived as a rise in the number of doctors facing criminal prosecution and the impact prosecutions are having on healthcare practice. May more frequent resort to the criminal process damage rather than promote better health care? In seeking to try to answer this question, the first problem is that reliable data in this area about how many prosecutions are brought and how they fare are limited due to the way cases are recorded. What evidence does exist is often based on media reports or samples that are not representative. This paper will argue that, while the real risk of being prosecuted for medical manslaughter remains low, such fears should not be dismissed because, as Donald Berwick has argued, ‘fear is toxic’ – for health professionals and their patients.
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2.
Francis R. Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry. 2013.
3.
Quick op cit, p.614.
4.
Here Quick is referring to the numerous regulators that surround healthcare including the General Medical Council (GMC), Care Quality Commission, Professional Standards Authority for Health and Social Care and Monitor.
5.
National Advisory Group on the Safety of Patients in England, A Promise to Learn, A Commitment to Act: Improving the Safety of Patients in England, (August 2013) Recommendation 10.
6.
AlghraniABrazierMFarrellAM. Healthcare scandals in the NHS: Crime and punishment. J Med Ethics2011; 37: 230–232. See also the case of Ian Paterson who was recently charged with wounding patients, http://www.bbc.co.uk/news/uk-england-birmingham-35343099.
7.
Recommendation 1 and the Overarching goal of National Advisory Group on the safety of patients in England. A promise to learn, a commitment to act: improving the safety of patients in England. 2013, p.14.
8.
Under Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
9.
‘Medical manslaughter’ is not a separate criminal office but simply useful shorthand to describe those cases where a doctor or other health professional is charged with GNM in the course of professional practice.
10.
Boseley S. Doctors sign letter expressing worry over criminalisation of surgeon. The Guardian, 6 August 2015.
11.
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12.
Griffiths D and Sanders A. Following the law or using the law? Decision making in medical manslaughter. In: Cowan D and Wincott D (eds) Exploring the ‘legal’ in socio-legal studies. Basingstoke: Palgrave MacMillan, 2015. This research identified very different conceptions of ‘badness’ that impacted on prosecution decision-making.
National Advisory Group on the Safety of Patients in England. A promise to learn, a commitment to act: improving the safety of patients in England. 2013.
17.
More reliable data may now be available from the CPS due to changes in the way cases are recorded.
18.
Ferner R and McDowell S. Doctors charged with manslaughter in the courts of medical practice. J RSM 2006; 99: 309–314.
19.
Griffiths D and Sanders A. The road to the dock; prosecution decision-making in medical manslaughter cases. In: Griffiths D and Sanders A (eds) Medicine, crime and society. Cambridge: CUP, 2013, p.117.
20.
Quirk H. Sentencing white coat crime: the need for guidance in medical manslaughter cases. Crim LR 2013; 871–888.
21.
Whether the defendant was in breach of a duty of care towards the victim; whether the breach caused the death of the victim; and, if so, whether having regard to the risk of death involved, (not merely of serious injury), the conduct of a defendant was so bad in the circumstances as to amount to a criminal act or omission R v. Adomako [1995] 1 A.C. 171; [1994] 3 W.L.R. 288.
22.
BrazierMAlghraniA. Fatal medical malpractice and criminal liability. J Prof Negligence2009; 25: 51–67.
23.
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FernerRMcDowellS. Doctors charged with manslaughter in the courts of medical practice. J RSM2006; 99: 309–309.
26.
See ref. 19.
27.
ibid.
28.
R. v. Adomako [1995] 1 AC 171; R. v. Misra, Srivastava [2004] EWCA Crim 2375.
29.
FernerRMcDowellS. Doctors charged with manslaughter in the course of medical practice 1795–2005: a literature review. J R Soc Med2006; 99: 309–314.
30.
Griffiths and Sanders. Prosecution decision making. p 134.
31.
JorisVW. Who is the ‘little old lady’of international crimes? Nils Christie’s concept of the ideal victim reinterpreted. Int Rev Victimol2013; 19.2: 159–179.
32.
Turner C. Vincent Barker death: locum charged with GNM. Daily Telegraph, 10 September 2015.
33.
This led to the prosecution of two anaesthetists and the first corporate prosecution against an NHS Trust.
Of 99 respondents, 85 agreed or strongly agreed that they had changed their practice style to a more defensive approach – involving more tests, procedures and over prescribing – because of actual or fear of ‘litigation’, 43 respondents agreed or strongly agreed that this fear has made them ‘more likely’ to avoid treating (or operating on) ‘high risk patients’. Of the other questions, some asked simply about ‘prosecution’, while other questions asked about fear of, and experiences of, all types of legal action (complaints investigated by hospital trusts, or the GMC, or civil litigation or criminal prosecution). It is therefore unclear how much fear is generated by the criminal law compared to the fear resulting from civil litigation and disciplinary action.
41.
Francis R. Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry. 2013. [1.140].
The Right Honourable Lord Woolf. Access to justice: final report to the Lord Chancellor on the civil justice system in England and Wales (July 1996) Section IV, Chapter 15.
47.
The form part of a recommendations document that the authors would be happy to share on request.
