Co-authored by Simon Wessely and Roger Kirby.
Medical manslaughter – unforgivable crime or a recipe for miscarriage of justice?
One of the major roles of the RSM is to cover topics that cross disciplinary boundaries both within and outside medicine. One such issue is the vexed question of “medical manslaughter”. First, this is not the province of any single one of either the Royal Colleges or our own Society. Second, it is not solely a medical issue, but clearly overlaps with issues of law, negligence and the criminal justice system.
Medical manslaughter is a shorthand term for what is generally known as gross negligence manslaughter. For us that means that a patient has died as a result of a “grossly negligent” act by one or more of our profession, happening during the course of them carrying out their professional duties. For example, it wouldn’t refer to a case in which a drunken doctor at the wheel of their car caused the death of a pedestrian.
It’s thankfully not common – a fascinating paper in our own journal gives you an overview of the 85 doctors charged with this between 1795 and 2005. Since then the BMA has estimated that there have been 11 further prosecutions to the end of 2013, with six convictions. Until recently the result of a conviction was usually a suspended sentence, but these days a custodial sentence is the rule.
Professor Roger Kirby, our Academic Dean, organised a meeting at the RSM just before Christmas to discuss a particularly contentious and high-profile case, that of general surgeon David Sellu. In November 2013, an Old Bailey jury, by a 10–2 majority, convicted him of the manslaughter of his patient James Hughes by ‘gross negligence’, and he was given an immediate custodial sentence.
A six-year journey has taken the surgeon through a coroner’s inquest, hospital investigation, police inquiry, prosecution, conviction, 15 months in prison and, eventually, to the Appeal Court, where three senior judges quashed his conviction on 15 November 2016.
Even now it is not all over. The now retired surgeon still faces a two-day GMC hearing, with possible erasure from the medical register. This may sound like double jeopardy, but we have to remember that the criminal standard of proof (“beyond all reasonable doubt”) is no longer used in GMC fitness to practice hearings, which have used the civil standard for the last decade.
The case that led to his conviction was that of a patient with perforated diverticular disease, presenting insidiously, in an individual who had very recently undergone joint replacement and had pre-existing liver disease. Abdominal sepsis is not always as easy to diagnose as some might think. Many of those reading this blog may recall patients with perforated sigmoid diverticulitis presenting to casualty departments in the middle of the night and sent home by senior, competent doctors with a diagnosis of constipation, only to return in extremis the next day.
A recent audit showed that 60% of NHS patients who need urgent laparotomy did not reach theatre in the optimum time. So simply because there was a delay in getting a patient to theatre is not sufficient in itself to gain a conviction for manslaughter. Without getting bogged down in the facts of this case, it was also accepted that a considerable part of the cause for the delay was the lack of anaesthetic cover.
A finding of gross negligence manslaughter can only be made by a jury. In the Sellu case the three Appeal Court judges ruled that the conviction was unsafe because the original trial judge, Mr Justice Nicol, had given ‘inadequate direction’ to the original jury. They had not been given enough help to decide whether the negligence that Mr David Sellu was accused of was ‘gross’ - in other words, so bad as to amount to a crime.
As has often been pointed out, it is human to err, and all doctors occasionally make mistakes. Some of these errors, especially in a rapidly deteriorating patient, may indeed be fatal. But that is not the same as manslaughter. If there is no suggestion of reckless behaviour or wilful misconduct, then treating the failure as a crime creates a negative and punitive climate in which the instinct for preservation becomes stronger than the motivation to make a report that could potentially save future lives. Good practice in healthcare safety points consistently to the need for an approach free of blame and retribution if learning to avoid future mistakes is to be achieved.
In the course of the meeting David Sellu himself gave a most eloquent presentation in which he described the nightmare scenario of his police interrogation, the court proceedings and his stay in Belmarsh High Security Prison, before being transferred to an open prison and eventually freed.
But what did the lawyers say? Of course no doctor can or should be above the law, but both James Badenoch QC and Sir Robert Francis argued that the miscarriage of justice that resulted in David Sellu’s inappropriate imprisonment might indicate the need for a significant change in the legal process.
Instead of the imprecise term ‘gross negligence’ (we have all occasionally been negligent, but have we been grossly so?) perhaps ‘reckless negligence’ would be a better yardstick with which to decide whether a clinician’s action or inaction should be deemed criminal or not?
The conclusion was resolved that further discussions should be held between the Royal Society of Medicine, the Crown Prosecution Service (CPS) and the police to see what could be done to reduce the risk of other clinicians, who were only doing what they considered to be their best, being similarly charged and convicted of gross negligence manslaughter following the unfortunate death of a patient under his or her care. So watch this space, since we are sure to return to the subject at a later date.
You may think that all of this is rather abstruse, legal wrangling and that this could never happen to you. Well, so did David Sellu until the day in question. So do pay attention.
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 Ferner, R.E., McDowell, S.E. Doctors charged with manslaughter in the course of medical practice, 1795–2005: a literature review. J R Soc Med 99: 309-314 (2006)