Medical death: a case to answer

There have been a number of recent prosecutions for gross negligence manslaughter (GNM) in England & Wales, a trend not repeated in Scotland in prosecutions for culpable homicide. Why this should be, and what changes may be required, are a core part of a current independent review of GNM and culpable homicide by the General Medical Council.

When is it right to prosecute?

When the death of a patient should be followed by the criminal prosecution of an individual doctor, rather than pursuing a case in the civil courts, dealing with it as a professional conduct issue or raising a case based on organisational failures, is the focus of the review.

It recognises the different legal systems within the UK, and in fact asks “What lessons can we take from the system in Scotland (where law on ‘culpable homicide’ applies) about how fatal clinical incidents should be dealt with?” (Question 46)

This infers that there is something to be preferred, or at least different, about the Scottish system. Certainly only one, unsuccessful, medical culpable homicide prosecution has taken place in Scotland (Katy McAllister). That contrasts sharply with England, where the number of successful GNM prosecutions is increasing. A perception has developed that doctors are more likely to face prosecution south of the border for what could amount to similar circumstances. In turn, that can lead to a risk-averse culture, potentially resulting in doctors adopting a defensive medicine and denying patients life-saving treatments. This can impact on doctors’ training: they can become reticent to acknowledge mistakes, hindering the opportunity for promotion of learning, for allowing lessons to be learned and for supporting doctors when fatalities occur.

The high-profile English case of Dr Bawa Garba led to the GMC review. She was a senior trainee convicted of GNM for the death in 2011 of a six-year-old child. She was subsequently struck off the medical register. Her appeal, in August 2018, was successful in reinstating her practising certificate, with a one-year practice suspension.

Her case forms the primary reasons for the GMC’s review of gross medical negligence manslaughter and culpable homicide, which includes consideration of:

• The role of the GMC: its successful appeal against the Medical Practitioners Tribunal’s original suspension raised concern around the tribunal’s complaints handling against doctors.
• Individual or organisation: should doctors face prosecution when it may be systemic pressures and constraints in the NHS that compromise their delivery of high-quality, safe patient care?

Differences between Scotland and England

The current UK position appears uncertain regarding the circumstances in which a doctor may face prosecution. This highlights differences in practice between Scotland and England.

In Scotland GNM as an offence does not exist. Culpable homicide is the nearest Scottish criminal offence, but it is not equivalent and is used widely, not just in medical cases. The Scottish standard for culpable homicide prosecutions is different, and potentially harder for the prosecution to achieve than GNM in England & Wales. The Scottish Law Commission’s 10th law reform programme is considering homicide (potentially including the legal test for culpable homicide), and may also consider medical deaths.

The role of COPFS

COPFS’s role in investigating deaths extends to suspicious, sudden, unexpected or unexplained deaths. Their investigation process is the same when the results will determine what route if any the death should take. This early, broad-based system allows the death to be considered for criminal prosecution and/or form the basis of a fatal accident inquiry (FAI). It preserves an open mind as to decision making where the Lord Advocate’s role in both prosecution and FAIs is crucial.

The Lord Advocate has the discretion to decide:

• whether it is in the public interest for a doctor to be prosecuted for culpable homicide, and/or
• to instruct a FAI where the death gives rise to matters of “significant public concern”.

This allows a consistent approach to be taken in each case, and to balance a number of factors such as the circumstances of the death, sufficiency of evidence and what may be learned as a result of any FAI. The FAI’s purpose is strictly defined and differs from the English inquest system.

Evidence

In criminal cases Scotland requires corroboration; that affects sufficiency of evidence for prosecution. Scotland and England differ too in relation to police interviews. In Scotland, where no adverse inference exists, the caution and the right to remain silent mean that there would rarely be any circumstances where a doctor accused of culpable homicide would be advised to provide any explanation of their conduct. Any explanation may produce the necessary corroboration. In England, providing an explanation may well be in the doctor’s best interests or they risk harming their defence.

Exactly what the GMC will recommend is awaited. This is an important review, which will also invite contributions from doctors, patients and the public. Irrespective of any prosecution or FAI, it remains clear that the GMC has a key role. As the FAI into the death of Norma Haq indicated, “there are a number of areas, inevitably touched upon in this [FAI] which are pertinent to and more appropriately decided elsewhere, in a civil court and at the [GMC]”.

Read the Society's full response on its website.