Gross Negligence Manslaughter in Healthcare where are we now (how did - PowerPoint PPT Presentation

30 July 2019 Gross Negligence Manslaughter in Healthcare where are we now (how did we get here) … and where are we going? Leslie Hamilton LLM FRCS Cardiac Surgeon [retired (early), licence to practise past Council, Royal College of Surgeons England Assistant Coroner, Durham and Darlington Chair, Independent Review of GNM / CH

Manslaughter – the Law • Manslaughter is homicide without premeditation (with = murder) • Two types: voluntary and involuntary • Voluntary: the unjustifiable, inexcusable, and intentional killing of a human being without deliberation, premeditation, and malice. • Involuntary: the unlawful killing of a human being without any deliberation, which may be involuntary, in the commission of a lawful act without due caution and circumspection • 4 categories of which GNM is one NB Scotland: ICH (involuntary culpable homicide) – need mens rea / recklessness

Criminal Negligence Gross Negligence Manslaughter Case Law (not Statute) R v Bateman (1925) The doctor must be proved to have shown such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment .

GNM: the Law R v Adomako [1994] UKHL 6 • Anaesthetist: failed to notice oxygen disconnected • House of Lords (Lord Mackay of Clashfern): • the defendant owed the victim a duty of care • the defendant breached that duty • the breach caused (or significantly contributed to) the victim’s death • the breach was grossly negligent .

Lord Mackay • “Grossly negligent” “The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal… The essence of the matter…is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act .”

David Sellu 2010 MB BCh 1973 Manchester Consultant Colo-rectal Surgeon, Clementine Churchill, London

The Story begins … David Sellu • 5 February 2010: James Hughes (from N.I.) had elective knee replacement • Day 6: abdominal pain – DS asked to review in the evening (Thursday) • “urgent” CT scan ordered for next morning (abdominal x -ray ? air) • delays … Mr Hughes rang home …. operation late evening • died next day • MCCD: 1a) MOF 1b) faecal peritonitis 1c) perforated diverticulum • Coroner’s Inquest: ? perjury • → Police → CPS → prosecution for GNM (experts: c/r surgeon (2 nd ) + intensivist) • “ ..conduct was completely uncharacteristic of Mr Sellu, who had had a blameless career of 40 years and was known by colleagues and patients alike as a kind and careful man”.

1 August 2011

David Sellu … whatever happened next? • convicted 2 October 2013: Jury verdict: guilty (10 to 2 majority) • “whole series of omissions in your care …” • “numerous occasions when your care fell far below that which could reasonably be expected of a consultant colorectal surgeon”. • “no alteration of medical records which would have been a significantly aggravating factor” • October 2013: custodial sentence (2.5 years): • served 15 months • > 300 surgeons wrote to RCS: “do something about experts” • Jenny Vaughan, Consultant Neurologist (Peter McDonald + Roger Kirby: RSM) • http://www.manslaughterandhealthcare.org.uk/ • Council debate (President: Dame Clare Marx) • Bertie Leigh (Hempsons): MDU / RCOG • AoMRC – meeting with Coroners

BMJ 2019;364:l1024 doi: 10.1136/bmj.l1024

David Sellu … the ongoing saga Mail on Sunday 26 July 2015

David Sellu … continued (after release from prison) • 17 November 2016: Appeal (NB “out of time”) Sellu [2016] EWCA Crim 1716 • 5 clinical grounds (including Dabigatran) – dismissed • but … conviction quashed … • ” trial judge did not give the jury adequate legal guidance on what gross negligence meant”. • The Court allowed the appeal because they held that the jury was given no guidance on the meaning of ‘gross negligence’ and that juries need to have clear directions as to the very serious nature of the negligence in order for manslaughter to be proved. • judges must direct juries very tightly: the standard has to be that the defendant acted in a “ truly, exceptionally bad” manner. … there must be foreseeability of death for negligence to be of criminal degree.

David Sellu … enter the GMC (Medical Act 1983) • A GMC spokesperson said: • “Although Dr Sellu’s criminal conviction was overturned on appeal there remained a very serious allegation that he failed to provide good clinical care to his patient.” • 6 March 2018: MPTS (set up after Dame Janet Smith Shipman Inquiry) • Tribunal: lay chair + 2 doctors + legal advisor (now legally qualified Chair + lay + doctor) • Experts: Consultant Colo-rectal Surgeon (different from trial) + others • allegations and findings of fact: NOT PROVED (note: balance of probabilities) • NB jury (10 / 2): PROVED at the criminal standard of proof • reflection on role / function of experts + spectrum of opinion

July 2019

Meanwhile ….. 18 February 2011 (Leicester Royal Infirmary) Jack Adcock (age 6) Dr Hadiza Bawa-Garba

Jack Adcock • 6- year old, Down’s syndrome. PMH: heart surgery (CAVSD: on ACE inhibitor) • frequent URTIs – 1 previous admission with pneumonia • A+E: admitted with D+V - pale, lethargic, dehydrated – to CAU @ 11am • responded to fluids – portable chest x-ray (delayed) • chest infection → sepsis • delay in antibiotics (3pm: B-G not told x-ray available) • nurse (Amaro): agency; no obs or fluid balance, did not report deterioration (NMC Tribunal) • turned off oxygen monitor as “Jack better” (Appeal Court [2018] EWCA Civ 1879: para 14 ) • delay in antibiotics • admitted to ward (SHO / nurse decision) • to room previously occupied by patient on end-of-life care (DNACPR) • mother gave ACE inhibitor (hospital policy) – cardiac arrest • confusion in resuscitation: ? DNACPR • died 11 hours after admission (sepsis)

Dr Hadiza Bawa-Garba (“in all the circumstances”) • ST 6 in paediatrics (Judge: above average; Trainers: top 1/3 of cohort) • 14 months maternity leave (1 st weekend on-call): • Community paediatrics: no Trust induction / return to work plan • interrupted handover (unit busy) • only Registrar: CAU (15 beds) Reg off, wards (4 floors) - new, inexperienced SHOs • 12 hour shift, no break (NB PSV licence: 2h45mins) • Consultant out of town: saw blood results at handover (4.30pm) but not patient • “# armchairconsultant: she did not ask me to see the patient • took her to the canteen and made her write down her mistakes (“reflective practice”) • in his written statement (now working in Ireland) and uploaded to training portfolio • radiology delayed • IT system “down” – blood results not available ( abnormal results normally highlighted) • “ .. By 4 o’clock, the SHO had not got the results I had to ring a different lab …” Inquest transcript • end of life care in one patient / baby ? meningitis • made serious errors (including high lactate/Cr/U+E + DNACPR – not causative)

Dr Hadiza Bawa-Garba (“in all the circumstances”) • Airline: crew shortage, fatigue, aircraft technical problems, radio … • Sir Ian Kennedy, RCSEd Conference 22 March 2018 • ”In terms of human factors, she was walking into a disaster zone” • LRI investigation • 6 “root causes” • 23 recommendations • 79 action points (including posters to remind other doctors) Andrew Furlong, Medical Director: “Best practice shows that when you’re trying to identify learning, the way to do that is in an open culture, where people can give evidence without fear of sanction or blame”

Sepsis • Definition: an overwhelming response to infection in which the immune system initiates a potentially damaging systemic inflammatory response syndrome (SIRS). • spectrum: infection … sepsis …. severe sepsis … septic shock … death UK Sepsis Trust • 200,000 cases in UK each year (25,000 children) • 44,000 deaths • major cause of “avoidable” deaths • treatment (especially antibiotics) asap • “Sepsis 6”: 3 investigations + 3 treatments

“One broad underlying problem is that the recognition of illness often requires 2015 more experience than junior members of staff can draw upon.” • delay in identifying • sepsis 36% • severe sepsis 52% • septic shock 33% • essential investigations • delayed 38% • missed 39% • sepsis care bundle 40% • avoidable delay in antibiotics 29% > 16 years of age • affected the outcome 44%