14 March 2018
Nick Barnard comments on convicting healthcare professionals of manslaughter in The Times Law Brief and The Justice Gap
The Medical Protection Society has called for the law in England and Wales to be brought into line with 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.
Nick Barnard, lawyer at London law firm Corker Binning, said:
“As well as the outcry in response to the conviction and striking-off of Dr Bawa-Garba, the recent pattern of cases either collapsing at trial (Dr Errol Cornish and the Maidstone and Tunbridge Wells NHS Trust) or being quashed on appeal (Dr John Sellu and optometrist Honey Rose) make a strong case for reconsidering the approach to medical manslaughter. However, the MPS suggestion that the threshold for gross negligence manslaughter should be raised for medical professionals is a bold one.
Much of the opprobrium arising from the Bawa-Garba case stems not from her actual conduct, but from the overwhelming pressure in which she found herself working, and a perception that this was overlooked in her prosecution and trial. In response, many doctors have adopted the hashtag #iambawagarba to reflect their own fears as to how they might have performed in the same circumstances.
But, however significant and emotive the issue of NHS resourcing might be, making a significant change to the criminal law is an extreme step. It should not be forgotten that the test for gross negligence manslaughter was established in the prosecution of an anaesthetist. The risk of arbitrarily raising the threshold to‘intentional, reckless or grossly careless’ is that a future case of serious negligence which warrants a criminal sanction may not prosecuted. Similarly, applying the concession only to medicine raises its own difficulties. Why should other professionals also working in pressured and complex circumstances not have the same protection?
The MPS are right to say that most medical cases are more complex than other gross negligence manslaughter cases, particularly where systems failures are involved. 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.”