A landmark conviction by a jury may be about to change the way the law deal with negligent doctors and other clinicians.
Following on from our blog in October 2015, on Friday 15th July a jury at the Ipswich Crown Court found Optician Honey Rose guilty of gross negligence manslaughter, after the death of 8 year old Vincent Barker (“Vinnie”). Vinnie had attended the Boots Opticians where Ms Rose was working as a locum Optician. Tragically, Ms Rose failed to spot some swelling at the back of Vinnie’s eye which was an indication of pressure within the skull. Left untreated, fluid was allowed to build up in Vinnie’s brain, which sadly led to his death.
Unfortunately, mistakes are made by clinicians every day, some without any effect but many leaving devastating effects on patients. The law has previously reserved criminal prosecutions for cases where a clinician has either intended to cause harm or has a history of being so careless that they must be considered to be a risk to patient safety. Most errors are dealt with in the civil courts, by way of clinical negligence claims to ensure that the injured patient or their families receive the compensation required to obtain support and rehabilitation. As a part of that process, investigations are carried out by the defendant hospital or organisation and training given to the clinician in question to ensure the mistake does not happen again.
Ms Rose’s conviction is startling because whilst the result of her error was nothing but devastating for the Barker family, the type of error made by Ms Rose was no different to those seen every day by our clinical negligence lawyers. Scans are regularly misinterpreted, meaning obvious clinical conditions are missed and patients not treated. It is also increasingly reported that more and more “Never Events” are being reported in hospitals. These are errors that the medical profession themselves has said are inexcusable and should not occur in modern medicine. The clinicians involved in those apparent unforgivable errors are not routinely prosecuted, so it is difficult to understand why the CPS chose to prosecute Ms Rose on the facts of this case.
What this will mean for the medical profession is unclear, but it is possible that an increased threat of criminal prosecution could lead to clinicians, hospitals and other organisations being more guarded when it comes to admitting errors that have been made. Doctors are currently under a duty of candour, which means that they must inform a patient when something has gone wrong, be open and honest about how that was allowed to happen and what will be done to prevent recurrence. Clinicians may now be wary about how much information they divulge in these types of cases so as not to incriminate themselves in respect of criminal prosecutions.
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.
It remains to be seen what approach the Court takes for sentencing Ms Rose. If the Court hands down a lengthy prison sentence, this would suggest that the law is starting to take a very hard line on clinical accidents, if a suspended sentence is provided, then some comfort may be offered to clinicians.
The verdict comes at a time when the Ministry of Justice is doing its utmost to cut the number of clinical negligence claims being brought against the NHS, by reducing the contribution towards legal fees that the Claimant’s receives from the defendant, rather than eradicating mistakes at source. This flies directly in the face of the approach taken by the CPS to prosecute Ms Rose, and the medical and legal worlds will no doubt be paying close attention to how these to which one of these two agenda will prevail.