A presentation by hilldickinson.com
Gross Negligence Manslaughter Emma Galland Partner emma.galland@hilldickinson.com 020 7280 9294
Contents • What is the current position • Recent cases: – Dr Sellu – Dr Bawa-Garba • Williams Review • Current position/what about the future? hilldickinson.com
Gross Negligence Manslaughter (GNM): Legal Definition (1) • No separate offence of Medical Manslaughter: GNM applies • Common law offence: R v Adomako [1994] 3 WLR 288 – Existence of a duty of care to the deceased – Breach of duty of care – Causes (or significantly contributes to) the death of the victim – Breach should be characterised as gross negligence hilldickinson.com
Gross Negligence Manslaughter: Legal Definition (2) “…the offence of [GNM] requires breach of existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation and to amount to a criminal act or omission” R v Rose [2017] EWCA Crim 1168 hilldickinson.com
Context • Prosecutions of healthcare professionals for GNM since 1994: – 38 deaths – Prosecutions of 47 healthcare professionals (37 doctors, 9 nurses, 1 optometrist) – 23 convicted; 4 overturned on appeal • Since 2013 – 9 deaths – 15 healthcare professionals – 6 convictions; 2 overturned on appeal hilldickinson.com
Dr Sellu – the facts • 2100: 11 February 2010 – 2200: 12 February 2010 – Not asking a radiologist to review whether there was free gas in the abdomen – Not asking RMO to commence antibiotics (or not documenting in medical records that RMO was asked) – Not requesting a CT scan that evening – requesting in the morning – No documented visit the following morning – No discussion with the nursing staff/RMO as to Ps condition in the morning • Consultant Surgeon: Higher standard of care hilldickinson.com
Dr Sellu: Outcome • Prison sentence: 2.5 years • 15 months served in prison • Conviction quashed in 2016 • Returned to work under supervision • GMC pursued FTP proceedings • 6.3.2018 – MPTS found GMC’s allegations not proved hilldickinson.com
Dr Bawa-Garba: Case Details • February 2011: 6 year old Jack Adcock was admitted to the Children’s Assessment Unit (CAU) at Leicester Royal Infirmary • Presenting with Down’s Syndrome, a cardiac condition, difficulty breathing, vomiting and diarrhoea • Dr Bawa Garba ( Dr BG) was responsible for Jack’s care • No senior Consultant available • Dr BG solely responsible for CAU hilldickinson.com
Case details ( 2) • Blood tests ordered at 10.45am results given 4.15pm • No request for Consultant review • Enalapril (drug given for heart failure) not discontinued • One hour later Jack “crashed” • Dr Bawa Garba confused him with another patient and briefly put a stop to the CPR – this action was not thought to contribute to his death • 9.20 pm Jack died of cardiac arrest as a result of sepsis hilldickinson.com
Court proceedings (1) • January 2015 - MPTS hearing: 18m suspension pending conclusion of GMC FTP investigation • March 2015: Dr Bawa-Garba successfully appeals MPTS suspension • November 2015: Criminal Proceedings – found guilty and receives 2 year prison sentence (suspended) • December 2016: Dr Bawa-Garba is denied permission to appeal hilldickinson.com
Court Proceedings (2) • 12/13 June 2017: MPTS suspends Dr Bawa-Garba for 12 months. GMC’s application to strike Dr Bawa-Garba off the register rejected • 30 June 2017: GMC appeals against decision not to strike off Dr Bawa Garba • 25 January 2018: GMC’s appeal is successful: Dr Bawa- Garba’s suspension is substituted for erasure • August 2018: Dr Bawa-Garba successfully appeals • April 2019: Dr Bawa- Garba’s suspension lifted (subject to conditions) hilldickinson.com
Meanwhile… • February 2018: Jeremy Hunt (the SoS for Health) announces review of manslaughter in healthcare • March 2018: LMC representatives back a vote of no confidence in the GMC. There are calls for doctors to disengage from written reflection • June 2018: Williams Review (into manslaughter in healthcare) is published hilldickinson.com
Williams Review: Recommendations (1) • Agreed and clear position on the law of GNM • Improving assurance and consistency in the use of experts • Consolidating expertise of GNM in healthcare settings in support of investigations • Improving quality of local investigations • Review of how healthcare professionals conduct reflection hilldickinson.com
Williams Review: Recommendations (2) • Remove GMC’s right to appeal MPTS decisions [NB: PSA to retain its right of appeal] • Consistency of FTP decisions across the regulators • Diversity of FTP proceedings • Review of legal representation in FTP proceedings • Support for familys/patients in FTP proceedings hilldickinson.com
Where are we now? • Cultural Change in healthcare? • Health Select Committee to examine GNM in healthcare: Offence of Medical Manslaughter? • Overwhelming dissatisfaction with the GMC “ A lightening rod for the dissatisfaction of doctors and medical staff ” • Concerns by clinicians as to the status of reflective practice – not privileged hilldickinson.com
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A presentation by hilldickinson.com
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