Manslaughter by doctors
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.
There has been both interest and concern relating to the recent immediate imprisonment of a doctor for manslaughter. Commentators have questioned1 whether the threshold for conviction of surgeons for manslaughter is being lowered in England and Wales. Are there safeguards in the criminal justice system that makes the anxiety that doctors are now more prone to conviction or imprisonment for manslaughter ill-founded?
Manslaughter is an offence of unlawful killing, or homicide. It is distinguished from murder by finding the absence of ‘malice aforethought’, roughly translated as an intention to kill.
Manslaughter covers the majority of homicides that are not murder. A charge of manslaughter allows for the court to have discretion in punishment, ranging from an absolute discharge to life imprisonment. This discretion reflects the commensurately wide range of circumstances that could have lead to the unlawful killing. This is necessary, since some defendants who did have an intention to kill can nevertheless establish that this intention was mitigated by one of three main defences; diminished responsibility, a loss of self-control via provocation, or engagement in a suicide pact. In these special circumstances, of voluntary manslaughter, mitigation may allow a reduction in the sentence to make it proportionate to their crime. No such mitigation is available in murder, since for this the life sentence of imprisonment is mandatory.
In general terms, when doctors are prosecuted for involuntary manslaughter, related to the alleged unlawful killing of a patient, it is the charge of gross negligence manslaughter which is alleged by the Crown Prosecution Service (CPS). In common with other crimes, a formulaic approach to prosecution, conviction and sentencing exists with the intention of ensuring consistency in criminal justice. For this reason, three thresholds must be crossed if a person is to be sentenced for this crime.
Firstly, the CPS will only bring this charge if it is considered to be in the public interest; and that on the balance of probability, the prosecution will be successful.
Secondly, the prosecution will have to satisfy the jury beyond reasonable doubt that each element of the crime is proved. The elements for the crime of gross negligence manslaughter have been developed by the courts, and were affirmed in the case of Adomako, in 19951, which illustrates the context of this offence. A patient had died after his anaesthetist failed to check that the oxygen supply remained connected to his endotracheal tube during retinal surgery, or to react to the consequent cessation of movements of breathing in this paralysed patient, or to the cessation of the ventilator’s indicators of oxygen delivery.
The court held that to be convicted, the following elements had to be proved:
(i) the defendant must have breached their duty of care by virtue of their negligence
(ii) that the negligence must have caused death
(iii) that the negligence complained of must amount to ‘gross negligence’.
The latter threshold would only be made out if the jury decides as follows:
“Having regard to the risk of death involved, [was] the conduct of the defendant so bad in the circumstances as to amount [in the jury’s mind] to a criminal act or omission?”
In an appeal2 hearing that followed, the court defined states of the defendant’s mind that could properly lead to a finding of gross negligence. These included (i) indifference to an obvious risk of injury to health, (ii) 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 as the jury considered justified conviction.
It can therefore be seen that distinct objective thresholds have to be passed by both the CPS in deciding to prosecute; and then by the jury, in finding that the three basic elements of gross negligence manslaughter, together with the mental element required to commit the offence, are proved.
After conviction, another formula has to be considered, in this case in the form of guidelines prescribed by the Sentencing Guidelines Council. These constrain the sentencing judge, but nevertheless provide for the consideration of aggravating factors indicating either a higher culpability, or a more than usually serious degree of harm (the latter, largely in relation to the vulnerability of the victim). To balance these, there are a number of mitigating factors, indicating lower culpability. It is only after taking any of these applicable factors into consideration that the judge can arrive at a sentence. Factors that reduce seriousness or reflect personal mitigation include good character, and exemplary conduct during the investigation and trial of the alleged offence. Factors increasing the seriousness of the crime include an attempt to conceal evidence.
Perhaps as a result of this sentencing formula doctors (including Adomako) convicted of gross negligence manslaughter consistently have had a custodial sentence imposed, which has (until now) invariably been suspended3. Becker administered excessive morphine to treat ureteric colic, resulting in respiratory arrest. Prentice and Sullman mistakenly injected vincristine intrathecally, with fatal results; Misra and Srivastava failed to respond to signs of of post operative infection after routine surgery, culminating in toxic shock and death. In all of these convictions, the custody sentence has varied between six and 24 months; the period of suspension between one and two years. In all of these cases, the doctors’ good character was noted and their probity unquestioned.
What may have been different in the current surgical case that lead to the immediate imposition of custody?
The conviction of Mr David Sellu, a 66 year old general surgeon, followed the death of a patient after routine orthopaedic surgery. The patient had developed abdominal symptoms post operatively, and had been seen by Mr Sellu on the evening of 11 February 2010. Having identified the possibility of gut perforation on a plain AXR, Mr Sellu arranged a CT scan for the following day, although the private hospital in which the patient was treated had a 24 hour CT service. The court found that Mr Sellu did not make the careful assessment of the patient on the following morning that was required, and that the necessary surgery was not performed until late in the evening of 12 February, more than 24 hours after presentation. The patient, Mr Hughes, later died.
When sentencing remarks in a criminal case are published, their purpose is for the judge to explain the reasoning behind his sentence. In this case, at the end of his first paragraph4, he notes that he is able to distinguish between different matters in the Crown's evidence. The judge does this because although reminded by the defence that the defendant was not charged with altering medical records, he feels nevertheless that more general questions over the defendant's truthfulness have played a significant role in his sentencing decision.
Firstly, he lays out how the defendant provided three different versions of whether he did or did not order the RMO to prescribe antibiotics; and how within those versions, there were contradictions. The judge found that no such instruction to prescribe was given, and from this we may deduce that the judge did not believe at least two of the defendant’s accounts. Mr Justice Nicol (the judge) hinted that he also doubted the defendant’s claim that he had visited the patient the following day, and later concluded that he had made numerous errors in his evidence, all of them putting himself in a better light; 'at the very least, .. [he] showed a lack of candour..'
We cannot contradict the judge's assessment of the defendant’s truthfulness, since only he was able to read the investigatory and coronial reports; and to hear live evidence.
It was then the task of the defence to provide mitigation for their client, attempting to persuade the judge to suspend the sentence. There were many colleagues from both the NHS and private sector who praised the defendant’s skill, ability and dedication in his care for patients. Such testimonials could have stood him in good stead, allowing him to receive the same suspension of a custodial sentence that his predecessors in this situation had enjoyed.
Why the judge refused so to do appears, in terms, in his remarks. It seems that the defendant’s dishonesty, as found by the judge, outweighed the other mitigation pleaded on his behalf, and for this reason, his sentence was of immediate custody.
Unless present in court and hearing the oral evidence and arguments unfold, it is not possible to go behind the reasons of a sentencing judge. The sentencing remarks in this case provide ample explanation why Mr Justice Nicol could not suspend the sentence. The case of Mr David Sellu does not provide an authority on which to base the proposition that the thresholds for prosecution, conviction or immediate imprisonment have altered in any way in England and Wales.
From the sentencing remarks can be derived simple advice to all registered medical practitioners. Be scrupulously honest throughout any investigation into your practice, at every stage. This is as important in dealing with local and GMC investigations as it is when facing court procedure. Taking this approach, even facing a charge of gross negligence manslaughter, immediate imprisonment remains unlikely, because acting in good faith will allow you to benefit from the generous mitigation that will almost certainly be available to you.
Update
On 15 November 2016, Mr Sellu’s criminal conviction was appealed.
The Court of Appeal did not believe that Mr Sellu had the benefit of sufficiently detailed directions to the jury in relation to the concept of gross negligence contained within the offence of gross negligence manslaughter. This failure was underlined by the way in which the experts had asserted gross negligence and aggravated by the absence of a route to verdict which would have focussed the jury members minds on the various stages to be considered.
The court came to the clear conclusion that the way in which the issue of gross negligence manslaughter was approached (and, in particular, the consequential direction to the jury) was inadequate. As a result, the conviction was unsafe and was quashed.
Subsequently, the GMC continued to pursue fitness for practice proceedings, but on 6 March 2018 the MPTS found none of the GMC’s allegations proved.
- R V Adomako [1995] 1 AC 171
- R v Holloway and Others (CA (Cr Div)) [1993] 4 Med LR 304
- R v Prentice [1993] 4 All ER 935 CA, R v Sullman [1994] QB 302, R v Adomako [1994] 3 All ER 79, R v Misra & Srivastava [2004] EWCA 2375.
- www.judiciary.gov.uk/media/judgments/2013/r-v-sellu-sentencing-remarks (accessed 14 February 2014)