Medico-Legal Committee

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Medical and gross negligence manslaughter

What is medical manslaughter?

Medical manslaughter or gross negligence manslaughter happens where the death is a result of a grossly negligent act or omission on the part of the defendant. In medicine this refers to doctors who are performing acts within the terms of their duty of care when the act or omission occurs.

Searches of news, legal, and medical databases, together with a request to the General Medical Council made under freedom of information legislation, found that 11 doctors had been charged with medical (gross negligence) manslaughter in the UK between 2006 and the end of 2013. Of these, six (55%) were convicted. ¹

The last three doctors convicted in 2012-13 all received custodial sentences rather than the usual suspended sentence. Before that the previous doctor to get a custodial sentence for medical manslaughter was in 2004. Since December 2014 four more doctors have been charged with medical manslaughter and are awaiting trial.

Doctors have expressed concerns as to the impact that investigations and prosecutions have on staff morale, on the health services and patient safety. These concerns have been exacerbated by the perceived changing landscape in terms of the threshold for prosecutions and rise in frequency of such investigations and a greater perceived willingness in the CPS to prosecute.

Case law

In 1994, the law in respect to gross negligence manslaughter was clarified in the case of Adomako.

The defendant was an anaesthetist in charge of a patient during an eye operation. During the operation an oxygen pipe became disconnected from the ventilator. The anaesthetist failed to notice the disconnection for six minutes and as a result the patient died. The anaesthetist was convicted of manslaughter.

As a result of a failed appeal, the House of Lords affirmed the conviction and defined a four-stage test for gross negligence manslaughter, which has become known as The Adomako Test.

The four elements of the offence are:

  1. The defendant owed the victim a duty of care
  2. The defendant breached that duty
  3. The breach caused (or significantly contributed to) the victim's death
  4. The breach was grossly negligent

The prosecution is required to prove that this test has been satisfied, beyond reasonable doubt, rather than on the civil standard of the balance of probabilities.

A jury must consider the extent to which the defendant's conduct departed from the proper standard of care and assess whether this conduct was so grossly negligent as to constitute a crime.

What the BMA is doing

BMA response to the GMC review

The GMC recently commissioned an independent review into how gross negligence manslaughter and culpable homicide are applied to medical practice.

Read our full response

 

BMA response to the Sir Norman Williams review

We have responded to the rapid policy review into the issues pertaining to Gross Negligence Manslaughter (GNM), commissioned by Health and Social Care secretary Jeremy Hunt in the aftermath of the Dr Bawa-Garba ruling.

Read our full response

 

Stakeholder event

The BMA, the Royal Society of Medicine and the Crown Prosecution Service met with stakeholders on 4 October 2017 to discuss this challenging subject. The aim of this event was to foster greater understanding of this complex subject, and to look at how that translates in practice for medical professionals.

The stakeholders involved looked at achieving long-term cultural change, including support at the top for improved openness and honesty. We also looked at the difficult questions and pressures faced by Coroners, investigators and prosecutors in identifying and responding to potentially criminal conduct by clinicians.

Read a summary of the Roundtable discussion on medical manslaughter

 

How you can get involved

There is widespread concern that staff cannot learn from errors or near misses in a culture of blame or under threat of criminal charges. However, the GMC duty of candour tells healthcare workers to be open and honest, when things go wrong.

An anonymised survey was developed by Dr Jenny Vaughan (Consultant Neurologist, Imperial College Healthcare NHS Trust) to seek views from doctors.

Dr Vaughan recently updated the survey, post Dr Bawa Garba's judgement. Although we won't get the exact same respondents, we will be able to get a comparison of the sense of feeling amoung doctors before and after the Dr Bawa Garba case.

Therefore, even if you completed the survey previously, we would encourage you to participate again and complete the revised survey below. The results from both surveys will be fed into the two reviews into the application of GNM in healthcare - the Review by Professor Sir Norman Williams and the GMC review led by Dame Clare Marx.

Take part in the revised survey

 

Find out more

For further information about this project, please email Reena Zapata, Senior Policy Advisor, Medico Legal Committee.

Find out more about the Medico legal committee and see how you can get involved.