A dark approach to clinical responsibility?
In recent months there has been an increasing number of doctors and nurses facing prosecution for gross negligent manslaughter. The charge, which can result in anything between a suspended and life sentence, springs out of a patient’s death which is suspected to have been caused by an act so negligent that it is in society’s best interest to prosecute the clinician in a criminal court.
On the face of it many may think that it is appropriate, if not essential, to hold medics to account when they have in effect failed to do their job at the cost of someone’s life. But what is concerning both the medical professional and lawyers involved in clinical negligence and other medical law are the types of cases that are now being pushed through by the Crown Prosecution Service.
Historically, only doctors and nurses responsible for the most flagrant and deliberate acts of harm to a patient were disciplined by the General Medical Council and the criminal courts. The test for whether or not a clinician’s actions are to be considered as “Gross Negligence” is whether or not the medic was (i) indifferent to an obvious risk of injury to health, (ii) had actual foresight of risk coupled with determination to run the risk, and (iii) an appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in attempted avoidance that the jury considers it justifies conviction. Doctors who show a complete lack of care for their patients or deliberately take unjustified risks with their patient’s life should absolutely be held to account both professionally and personally, but is it right that doctors who are victim’s of simple errors in judgment are now finding themselves fighting for their freedom?
An example of where the medical and legal profession have been surprised to learn that criminal action is being taken include the case of Honey Rose, an optometrist for Boots who missed some swelling at the back of a 8 year old’s eye. This swelling eventually led to brain damage and the boy very sadly died some months later as a result. Ms Rose has pleaded not guilty to a charge of gross negligence manslaughter and trial is awaited.
The difficulty that lawyers and medics have with this case is that whilst it is desperately sad that a young boy died as a result of a simple error, doctors are only human and it is often simple errors that are made, but these can have devastating effects. Ms Rose’s error cannot be considered to be any different from a Radiologist’s failure to identify cancer on a scan, which leads to a delay in diagnosis and treatment and could result in the patient dyeing or having a reduced life expectancy. Clinical negligence lawyers come across this scenario all of the time, but the doctors concerned are never considered to be negligent to the extent that their failure is considered criminal. They made a simple mistake, and made no deliberate attempt to harm their patient. It is not known why the CPS view Ms Rose’s mistake as criminal, is it because her patient happened to die? If the little boy had survived, would criminal action have been taken? The Association of Optometrists have responded to the news of Ms Rose’s prosecution by saying “we are not aware of any previous criminal cases involving optometrists which relate to clinical matters”.
The problem is that a strategy to routinely prosecute doctors in the criminal courts who make errors leading to death will not be constructive when it comes to encouraging medical practice within the NHS. The theory is that placing such heavy sanctions on an honest, albeit unfortunate and heart-breaking, mistake could discourage many very talented doctors from practicing. Nearly all, if not all, medics arrive at work with the sole aim of saving lives, not ending them, and there is no merit in discouraging that practice with draconian sanctions. Nobody is infallible, and doctors under increasing pressure in the NHS setting are no exception.
The CPS are showing no signs of stopping however. In fact, they are casting their net even wider by also charging the NHS Trusts running the hospital with corporate manslaughter. The case of Frances Cappucini has returned to the press this week after Anaesthetist Errol Cornish pleaded not guilty at a preliminary hearing of his criminal conviction. Mrs Cappucini was in labour at Tunbridge Wells Hospital when complications arose. She had elected for a Caesarean Section but the plan was overruled by Dr Cornish and his team who decided to let the birth develop naturally. Unfortunately, the prosecution state that Mrs Cappucini was left struggling to breath for 90 minutes and was late in receiving a blood transfusion after suffering a massive bleed. The baby was eventually delivered by C-Section but Mrs Cappucini sadly died as a result of her injuries.
Not only has the prosecution decided to charge Dr Errol, and his colleague Dr Nadeem Azeez who has fled to his native Pakistan, but they have charged Maidstone and Tunbridge Wells NHS Trust with corporate manslaughter, an unprecedented decision. NHS Trusts have always been held liable for clinical negligence as the employer of the offending doctor as, put bluntly, they have the money to pay the compensation but attributing criminal responsibility is a whole other story. Is it really in the public interest to hold an NHS Trust criminally accountable for an act that, in theory, is so far beyond what they would expect their doctor to do; recklessly harm a patient? The hospital could not possibly have any control over that and the disruption cause by having to deal with such accusations can only distract from the Trust’s effort in improving overall care and meeting other targets.
Finally, we await the verdict in the criminal prosecution against Dr Hadiza Bawa-Garb and two nurses for the death of Jack Adcock, a 6 year old who died of pneumonia and septic shock after being admitted to Leicester Royal Infirmary in 2001. It is alleged that Dr Bawa-Garb confused Jack with a terminally ill patient and mistakenly thought that he was subject to a “Do Not Resuscitate” Order. Now clearly this is very serious and there should never be a situation where a patient should not be resuscitated due to mistaken identity, but Dr Bawa-Garb was very tired, coming to the end of a 12 hour shift and was running a busy department. Many of these factors were completely outside her control and down to the increasing pressure placed on NHS staff.
Overall, criminal responsibility to this extent, for both doctors and Trusts, can only harm the NHS and will most likely result in fewer complaints of medical malpractice being picked up. Claimants in negligence cases only tend to pursue a claim because of the reassurance that the doctor will not be personally penalised for their mistake, no matter how devastating their injury may be they appreciate that 99% of the time doctors do nothing but great work. For the NHS to function, doctors must feel that they can practice without the threat of prison hanging over them if they make an honest mistake, and that must be the right approach.
We, like the rest of those professionals involved in cases of this type will be watching these cases very closely.