Is the law around 'gross-negligence manslaughter' fit for purpose in healthcare?

5th March 2018 Clinical Negligence

There has been much concern in the medical profession over recent weeks following a doctor's erasure from the medical register after she was found guilty of manslaughter on the grounds of gross negligence when a patient she was caring for, 6 year old Jack Adcock, at Leicester Royal Infirmary, died in February 2011.

Whilst it is common for those who have suffered negligence from the medical profession to pursue a civil action for damages, it is unlikely to result in any criminal or regulatory action. Being part of this specialist field you see and hear so many ordeals from patients and families having received substandard care, but what happens when that negligence is so severe it calls into question whether that doctor is criminally liable for their actions or whether they are altogether unsafe to practise and should be erased from the register and unable to practise.

That is what happened in the case of Dr Bawa-Garba (Dr BG). She was an ST6 doctor, a doctor in their eight year of postgraduate training, when she was convicted of manslaughter on 4 November 2015 at Nottingham Crown Court. Her regulator, the General Medical Council (GMC), conducted their own investigation and in June 2017 she was suspended from practicing for 12 months by the Medical Practitioners Tribunal Service (MPTS). The GMC appealed against the decision of the MPTS, a power introduced to them in Dec 2015, and Dr BG was struck off entirely from the medical register on 25 January 2018.

Since this decision there has been an outpour of concern about the implications in this case and what this means in the future with doctors requesting new guidance be published urgently arguing they should not live in fear of legal action for honest mistakes. The definition of medical manslaughter is no different from that of gross negligence manslaughter but there has been no review on the matter for some time. Between 1975 and 2005 it was reported 85 doctors were charged with manslaughter in the UK. Although the numbers remain low the number of doctors prosecuted for such an offence has risen since the 1990's.

The outcome of Dr BG's case has meant several reviews are currently being conducted including the Department of Health's investigation as to whether gross negligence manslaughter laws are fit for purpose in healthcare in England and the GMC's investigation into how gross negligence manslaughter cases are investigated in the UK.

The UK has already seen recent criminal offences of ill treatment and wilful neglect being introduced to care workers carrying a maximum penalty of 5 years imprisonment and/or an unlimited fine. The reviews are hoped to be completed by the end of this year and so could be the start of bringing guidance and/or a change of legislation to such convictions in the UK.

To discuss any issues raised in this blog or how our team can assist you please do not hesitate to contact our team.

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Peter Grogan is a Partner and Head of Department located in Manchester in our Business Crime, Regulation & Driving Offences department

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