Healthcare Update: Negligence – When Does Clinical Become Criminal?
18 May 2018
The case of paediatric registrar, Dr Bawa-Garba has rocked the medical and nursing professions, both in the UK and in Ireland. We look at Dr Bawa-Garba's 2015 conviction and resulting suspended sentence for gross negligence manslaughter and how a case like this would be handled in Ireland.
Jack Adcock, a 6-year-old boy with Down’s Syndrome, was admitted to the Children’s Assessment Unit (CAU) at Leicester Royal Infirmary following a referral from his GP with diarrhoea, vomiting and difficulty breathing. His primary treating doctor was Dr Bawa-Garba, a specialist paediatric registrar in year six of her postgraduate training. She had a prior ‘impeccable record’ as a doctor. She had recently returned from maternity leave to a new hospital where no induction had been provided.
On the day of the incident, Dr Bawa-Garba was solely in charge of the emergency department and acute Children’s Assessment Unit due to staff shortages and the fact that her consultant was off-site. The hospital IT system had broken down causing a delay in receiving blood results. Through the course of the day, Jack developed septic shock from which he died later that night. A number of gaps in the care provided by Dr Bawa-Garba were identified. These included a failure to appreciate the gravity of significantly altered blood results and to review and action the results of a chest x-ray.
The fact that defects in care ultimately warranted a criminal conviction, and particularly so in circumstances where she was providing care within a clearly sub-optimal system has sparked concern among practitioners. The chief concern raised by many healthcare practitioners of all grades and speciality is this: "It could have been me.”
Conviction and the legal test applied
In 2015, a jury returned a majority 10-2 verdict in favour of a conviction of gross negligence manslaughter. An appeal failed.
The test applied comes from the House of Lords Decision in R v Adomako . To satisfy the test:
- the existence of a duty of care must exist
- a breach of that duty of care must have occurred that causes or significantly contributes to the death
- that breach must be characterised as gross negligence, therefore making it a crime. The jury must have regard to the seriousness of the breach and the extent to which the doctor departed from proper conduct.
Various adjectives have been used by judges since to describe the conduct involved, including “reprehensible” and “truly exceptionally bad”.
Has it happened in Ireland?
No, there has never been a conviction in Ireland for gross negligence manslaughter in a medical context.
Could it happen in Ireland?
Yes, it could.
The same offence exists in Ireland. The test established by the Irish authority, though the subject matter was not medical care, is quite similar. It requires negligence of a very high degree and a high degree of risk or likelihood of substantial personal injury to others. Arguably, the test threshold in Ireland is lower than in England and Wales as the risk posed need only be one of substantial personal injury rather than death.
The test is objective and requires no subjective wrongdoing. This means that medical practitioners who make a momentary but fatal medical mistake could find themselves subject to a criminal conviction.
There have been numerous prosecutions for ‘medical manslaughter’ in the UK. Between 2006 and 2013, 11 doctors were charged with gross negligence manslaughter. Six of those were convicted. The data indicates that prosecution and successful convictions are rising. Some recent cases include:
- 2003: Medical registrar convicted after a teenage patient died after a toxic cancer drug was wrongly injected into his spine. This resulted in an eight-month prison sentence.
- 2012: Urologist convicted after a female patient in her late 30s was admitted with a kidney infection. An ultrasound scan was delayed until the next day so she did not receive the emergency treatment she needed and died. This resulted in a two-year custodial sentence.
- 2013: Colorectal surgeon convicted after a patient developed post-operative abdominal symptoms following orthopaedic surgery. There was a delayed diagnosis and treatment of a perforated bowel. Although it was overturned in 2016, a two and a half year custodial sentence was handed down in that case.
Should medical professionals be exposed to criminal law in Ireland?
It is difficult to justify the law as it stands for the following reasons:
- While the courts have found that the offence of gross negligent manslaughter isn’t unconstitutional, the lack of clarity of what constitutes ‘gross’ does raise questions of fairness.
- The concept of ‘gross negligence’ is extremely vague and not capable of objective measurement.
- Doctors face greater exposure to criminal convictions due to the inherent risks in medicine. Decisions made by doctors in delivering patient care have to be made instantly and a risk adverse doctor may do more harm than good.
- The law focuses on harm rather than moral culpability. There is no distinction between those doctors who make many poor decisions and show incompetency and those who make a once off error under pressure or because of failures in the system. The law is excessively unfair on doctors who work in some of the most stressful environments and in a healthcare system in crisis.
- The outcome of the error decides the vulnerability of criminal action. Doctors who make the same mistake, even if negligent, can experience a different outcome. For some, a good governance and teaching system can provide a safety net that prevents an error, even if negligent, from causing harm. For others, failures in the system can lead to devastating consequences.
- Prosecutions of ‘medical manslaughter’ may be harmful to good medical practice and patient safety in the long term. Good medical practice is based on openness and ability to learn from others. What effect does criminalising doctors have on open disclosure, whether voluntary or mandatory.
While medical professionals should not be totally immune to criminal convictions, it is difficult to justify the prosecution of medical practitioners in cases of unintentional error, particularly where the error is contributed to by systemic weaknesses for which the practitioner has no responsibility. One option for reform is the abolition of gross negligence manslaughter and the revival of reckless manslaughter. This would restrict the prosecutions of manslaughter to conscious and deliberate risk-taking or recklessness.
For more information relating to the application of Irish law to medical negligence cases, contact a member of our Healthcare & Medical Law team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.