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Call to change manslaughter charges to culpable homicide

England should follow Scottish example, say experts

Jo Carlowe

Tuesday, 13 March 2018

English laws on gross negligence manslaughter in healthcare should change in line with Sottish law.

This is the view of the Medical Protection Society (MPS) which today is calling for gross negligence manslaughter (GNM) cases in healthcare to move towards Scotland’s comparable offence of culpable homicide, where charges are only brought against doctors if an act is proved to be intentional, reckless or grossly careless.

In its response to Professor Sir Norman Williams’ review into GNM in healthcare, MPS said the legal bar for conviction in England and Wales – which does not require intent or recklessness or a public interest test – is too low and is resulting in good doctors being criminalised for unintentional and often system-wide mistakes that are devastating for all involved.

It said the law and its application in Scotland - which has seen one attempted prosecution resulting in acquittal - is better suited to determining the culpability of a doctor in a patient death and whether a prosecution is in the public interest.

MPS urged a bold approach when considering law reform on GNM in healthcare – shifting it more into line with the legal test for culpable homicide in Scotland, and placing a requirement on the director of public prosecution to authorise all GNM prosecutions involving healthcare professionals.

Dr Rob Hendry, medical director at the MPS, said: “The public and medical profession would expect that extreme cases, where there is intent to cause harm or a high degree of recklessness, result in prosecution – and we support that.

“Most medical manslaughter cases are however more complex, involve systems failures, and are devastating for all concerned. Dr Bawa-Garba’s conviction is a case in point, and the strength of feeling on this and its implications for an open, learning culture in healthcare, has been palpable.”

He added: “A striking feature of the law in England and Wales is that intent, carelessness, or recklessness is not required for a conviction. The legal bar is too low and it is hard to see who benefits – a family has lost a loved one through tragic circumstances, a doctor may lose their career and face a prison sentence, the NHS has lost a valuable doctor, and fear of personal recrimination becomes increasingly embedded across healthcare.

“Opportunities to reform the law surrounding medical manslaughter have not been seized. We recommend the law is moved more into line with the legal test for culpable homicide in Scotland, which requires an act to be intentional, reckless or grossly careless.

“While the legal and judicial systems in the two countries are different and it is not possible to transpose proceedings for one case from one jurisdiction into another, there is a real question of whether many cases in England and Wales would have made it to court in Scotland in the first place.

“A further salient point from the approach in Scotland is that the prosecution of a healthcare professional for culpable homicide must be considered by the procurator fiscal and authorised by the lord advocate before it can proceed. The director of public prosecution could fulfil this role in England and Wales to ensure the vital question of whether public interest is served by a prosecution is considered.

“There has never been a more important time for reform, and we stand ready to work with Professor Sir Norman Williams and the government on some bold and much needed changes.”

Professor Sir Norman Williams’ review will report back by April 2018.

Dr Bawa-Garba was convicted on gross negligence manslaughter charges in 2015 following the death of a six-year-old patient in 2011.

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