An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

If a clinician is suspected by the police of gross negligence manslaughter the point will be reached where, in England & Wales, the Crown Prosecution Service (CPS) must make a decision as to whether the clinician should be charged with this crime. If charged, the accused will stand trial, unless they plead guilty.

One of the key factors in making this decision is whether there is ‘a realistic prospect of conviction’ - in other words, whether the court is more likely than not to convict. This begs the question of whether (assuming the allegations are proven in trial) the jury will find the defendant guilty. To predict this, it is important to consider what guidance the judge will give the jury with respect to what ‘gross negligence’ entails. After all, if the defendant has not been grossly negligent, then the jury must acquit him or her.

Medical experts provide the court with an opinion as to whether care was substandard. But the issue of whether substandard care (‘negligence’) amounts to gross negligence is a matter for the jury alone.

In a case involving a doctor who failed to send a patient to hospital promptly, the court in R v Bateman (1925) provided this guidance as to what gross negligence might mean:

In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, the judges have used many epithets, such as "culpable," "criminal," "gross," "wicked," "clear," "complete." But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury ... the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.

In the case of Dr Bawa-Garba, the judicial epithet used to describe to the jury the threshold for gross negligence was whether her failings were ‘truly exceptionally bad’ or not.

In a more recent case involving failure to recognise that an anaesthetic ventilation circuit was disconnected for four minutes (R v Adomako, 1994), the court (accepting the rubric from Bateman) set out a circumstantial analysis of what could constitute gross negligence:

Indifference to an obvious risk of injury to health
Actual foresight of the risk coupled with the determination nevertheless to run it
Actual foresight of the risk together with an intention to avoid it but involving such a high degree of negligence in the attempted avoidance as the jury considered justified conviction
Inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an important matter which the defendants duty demanded he should address.

Does the guidance in Bateman & Adomako properly equip a jury to be able to recognise ‘gross negligence’? The fact that judges continue to use their own epithets may indicate otherwise, if they feel that further definition for the jury is called for. If, in turn, the CPS is also unable to define clearly the elements of this offence, how can they be certain that they are using the charging threshold consistently? Perhaps a more coherent and reproducible approach to making the decision to charge doctors with gross negligence manslaughter is required.

Robert Wheeler
Department of clinical law
February 2018

Gross negligence manslaughter: what does 'gross' entail?