Gross Negligence Manslaughter in England and Wales - Essay Example

Gross Negligence Manslaughter By Due The current law of Gross Negligence Manslaughter (henceforth GNM) in England and Wales demands healthcare practitioners to be very careful in their practice as the slightest negligence can end up drastically. It is one of the few areas where criminal law intersects with tort law. Recently, a consultant surgeon David Sellu has been convicted of the manslaughter of a patient at a private London hospital.1 He has been sentenced to two and a half years in prison. In this case, Sellu was found guilty of manslaughter through gross neglect as he did not act with due diligence while dealing with James Hughes. Hughes developed a life-threatening condition and died after three days. It is important to notice that the ‘manslaughter’ by Sellu was completely involuntary and all his acts were actually lawful. Sellu had sufficient reasons to believe that there had been a rupture in Hughes’ bowel. This is a life threatening condition and it requires surgery. Sellu, however, did not act with the urgency that Hughes’ case required. This is one aspect in which GNM differs from constructive manslaughter in that it can be committed by omission. While sentencing Sellu, Justice Nicol remarked,2 “Even if you had acted more speedily, there was a chance that Mr Hughes would have died anyway. There is always such a risk with major abdominal surgery of the kind he needed. But the chance would have been very, very much smaller if you had acted as a reasonable surgeon would have done on the Thursday night.” From Justice Nicol’s remarks, it can easily be inferred that Sellu’s omission had amounted to his GNM. If he had acted timely, there might have been a chance of Hughes surviving. This case gives healthcare practitioners a very thin window for procrastination. This is probably fair since the cost of their negligence can be so high that can never be made up i.e. a human life. This case can be compared to that of Grace Adeleye, a Nigerian nurse who botched a home circumcision of a 4 year old boy who bled to death as a result.3 Adeleye was paid £100 by the boy’s family to perform circumcision at home as they were not aware that the procedure was available on the NHS. The nurse used only a pair of scissors, forceps and olive oil for the circumcision and did not use anaesthetic. Adeleye was found guilty of GNM by court. The court rejected the argument that “circumcisions were routinely carried out among Christian families in Nigeria who brought the tradition with them to the UK, and the procedure was an ancient, well established and widespread practice across the world”4. The key feature that distinguishes her case from that of Sellu is that she was highly negligent of the risk that is naturally attached with the process of circumcision. The boy died because of her negligence only. In Sellu’s case, his negligence contributed to the factors of Hughes’ death. Adeyele’s negligence accounted for the death of a perfectly healthy boy who would have surely survived had his circumcision been handled carefully. In the context of law relating gross negligence manslaughter in the UK, the case of R v Bateman5 is extremely important. In this case, a doctor was accused of manslaughter that arose out of his treatment of a woman in childbirth. He was convicted by the court of the same. Lord Hewitt CJ outlined that gross negligence manslaughter must involve the following elements: i. the defendant must owe a duty to take care to the deceased; ii. this duty must be breached by the defendant; iii. this breach caused the death of the deceased; and iv. the negligence by the defendant must be gross in that it must show such a disregard for the life and safety of others as to amount to a crime. Also, in order to convict a defendant of gross negligence manslaughter, mens rea must also be established. It refers to the state of mind of a defendant when his act or omission results in the death of a patient. But in Attorney-General’s Reference No. 2,6 it was suggested that mens rea is not always required for GNM; it depends on its relevance in particular cases. Conviction under GNM can occur even in the absence of mens rea, but knowing the state of mind of a defendant is rather helpful in deciding such cases as it becomes clear whether a particular conduct fell short of the standards of the reasonable person. It means that it is important that a defendant fails to foresee the consequences of his actions which would have been foreseen by a reasonable person. The test established in R v Bateman was applied in Adomako’s case7. In this case, a patient died when his tube was disconnected from the ventilator and the anaesthetist failed to notice that. The court convicted the anaesthetist of gross negligence manslaughter using the Bateman test. It is important to notice that convictions under GNM for healthcare professionals are very rare. It is because the courts require expert evidence to assess gross negligence. Compared to simple clinical negligence, GNM is of much higher threshold. Also, the burden of proof that is required in such cases is of the criminal standard i.e. gross negligence has to be proved beyond all reasonable doubt: and the penalty is also of the criminal standard. There has also been a debate regarding the sentences that are handed by courts once GNM has been established. In R v Kovvali,8 the defendant doctor, having been sentenced to two and a half years after he pleaded guilty to GNM, appealed against the sentence. The court dismissed the appeal maintaining that the sentence of two and a half years imprisonment had not been manifestly excessive. The defendant had referred to Criminal Justice Act 2003 s 143(1), which requires that the court had to consider the offenders culpability. Also, the fact that he had pleaded guilty should have reduced his sentence to some degree. But the court maintained that the defendant’s negligence was gross to such a degree that it did not even require expert evidence to prove it. His treatment was so far below the acceptable standards that he should have realised it as grossly negligent. It is also important to notice that the defendant had not pleaded guilty right away; he did it at a later stage. It can reasonably be construed from this case that just like Criminal Justice Act 2003 has resulted in more severe punishments for cases involving a death; it has also resulted in the same in cases involving GNM. The concept of GNM also exists in other countries but with different names. For instance, it is known as criminally negligent homicide in the US. But gross negligence that ends up in manslaughter is not treated as a criminal matter in the US. It is treated as a civil matter like all other cases of medical negligence. The worst penalty that can be handed for a repeated offence is that the respective state takes away the license of the doctor. But the law is still very lenient as compared to that of UK. A shocking example is that of Dr. Eric Scheffey, also known as Eric the Red,9 who was an orthopedic surgeon in Texas. He left hundreds of patients dead or maimed in his two decade career. He was let go from three different hospitals and was also admitted abusing cocaine for 18 months. A judge recommended that his license should be taken away but the Texas Board of Medical Examiners allowed him to continue his practice. Finally, in 2005, his license was revoked by the board as more than 78 medical negligence lawsuits were filed against him in his 24 year career. The Canadian system regarding medical malpractice is quite similar to that of the US. But the number of actual claims that are made in Canada is quite lower than that of the US. A probable reason for that is most physicians in Canada are insured against medical malpractice claims. Healthcare professionals are not held accountable for manslaughter through a criminal standard. In Japan, doctors are covered for malpractice claims by a collective insurance pool. These doctors usually belong to the Japanese Medical Association. But when a death occurs due to gross negligence, it is often treated as a criminal matter and results in imprisonment of the defendant. Australia derives its law regarding GNM from the English common law. Australian law requires the degree of negligence to be qualified by adjectives so that it can be determined whether it deserves punishment.10 The leading case in this regard is Nydam v R11. In this case, the Full Court of Victoria held that the defendant’s act must be such that i. it greatly falls short of the standard of care which a reasonable person would exercise ; and ii. It is of such a high risk that it results in death or a grievous bodily harm and hence the defendant deserves criminal punishment. In determining the degree of risk, the courts in Australia use the Bateman test: they also assess whether the defendant’s act or omission is such that it shows utter disregard for human life. The test regarding ‘falling short of reasonable conduct’ is also derived from Bateman. It assesses whether the defendant’s act is such that it goes beyond civil negligence and deserves criminal punishment. In Australia, GNM is treated as a crime under all of the Codes12 but not in the Code of the Northern Territory. S 31 of the Criminal Code precludes liability based on objective foreseeability in the Northern Territory13. According to this section, there is no liability without foresight of the possibility of harm. The Model Criminal Code calls GNM ‘Dangerous conduct causing death’.14 R v Southampton University Hospital NHS Trust 15extends the effects of GNM to employers. A 31-year-old patient, Sean Phillips, died from infection shortly after he had a routine tendon operation in a hospital run by Southampton University Hospitals NHS. Two junior doctors that were responsible for his death due to poor aftercare were convicted of GNM. They had failed to notice the diagnostic signs, seek advice, chase up results, and administer antibiotics. Importantly, the Trust was also held responsible for it had failed to supervise the doctors properly. This is the fact that sets this case apart from other GNM cases.16 Hospitals have generally not been held to account. Five charges were brought against the Trust and it pleaded guilty to one of them under s.3 of Health and Safety at Work Act 1974. The Trust had hoped to avoid liability by not being held responsible for manslaughter. But it was still fined a hefty sum of £100,000 and it brought a lot of adverse publicity as a result.17 However, it was a very important step as the hospitals were now made unable to pass the blame entirely on the junior staff and absolve themselves of GNM. This case has lead to many developments in UK law regarding GNM. Bailey v Ministry of Defence18 is a case that does not involve GNM but is of great relevance as it questions the role of hospitals. In this case, it was highlighted that if the defendant is responsible for increasing the risk of harm, the claimant would succeed in receiving compensation. This dictum was also applied in Canning—Kishver v Sandwell and West Birmingham Hospitals NHS Trust.19 Hospitals have to be wary of the fact that can be held accountable for contributing to the risk of harm.20 But the problem is dealing with cases in which hospitals are responsible for manslaughter. It has been seen in R v Southampton University Hospital NHS Trust that there was GNM and it was extremely difficult to hold the hospital accountable according to criminal standard. This is why a term called ‘corporate manslaughter’ has been coined. The Parliament of United Kingdom broadened the law on corporate slaughter by enacting Corporate Manslaughter and Corporate Homicide Act 2007. According to this act, when an organisation’s activities are organised or managed in such a way that it results in: Causing a person’s death; and Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased,21 It is said to have committed an indictable act. Importantly, this law makes hospitals bound to duty of care under the law of negligence and a relevant duty of care is a question of law for the judge.22 Another key feature of this law is that singles out ‘senior management’. It defines ‘senior management’ as the persons who play significant roles in: The making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or The actual managing or organising of the whole or a substantial part of those activities. Before this act was put in place, corporations were convicted of manslaughter only in those cases where all the elements the offence was committed by a single employee and he was of sufficient seniority to be seen as embodying the "mind" of the corporation.23 When there is a breach of relevant duty of care by a corporation, the way in which its activities are managed or organised by its senior management should be a substantial element in the breach. Once this is established, corporations may be ordered to remedy their breach24, or to publicise its failures25, or be given an unlimited fine.26 The Sentencing Guidelines Council also issued a consultative document27 in which it recommended a starting point of a fine of 5% of company turnover for a first offence with a not guilty plea, which can be raised to 10% of turnover.28 The current UK law regarding GNM seems fair overall. But establishing guilt is still quite a murky affair. The courts have not yet been able to define a clear boundary between negligence and gross negligence. In Adomako, the conduct of the defendant was required to be so bad in all the circumstances as to amount to a criminal act or omission. But there should be a system where one-off errors and a deliberate disregard for practice and procedure can be distinguished. The current test requires reasons based on moral blameworthiness which is a rather subjective and intangible concept. Such a test needs to be devised which requires objective reasons and clearly defines which acts are acts of negligence and which are of ‘gross’ negligence. However, currently, it looks like ‘gross’ negligence is likely to continue to be established on a case by case basis. There is also the issue of penalty. The claimants are entitled to treat this is as a civil matter. When it is left in the hands of courts, they treat it as a criminal matter. It was seen in Sellu’s case that he was sentenced to two and a half years in prison. But Kovalli was sentenced the same amount of time even though he pleaded guilty. The fact that he pleaded late suggests that there might be a possibility of a mitigated sentence if the defendants plead guilty early. Another important fact is that some acts only contribute to a death while others, like that of Adeleye, are the sole reasons. The most questionable issue is that all acts of negligence, even if they are gross, are not of the same degree. Some acts are more severe and contribute to risk of death more than others. But all the defendants receive almost similar sentences. Therefore, the debate comes back to the fact that degrees of negligence are very difficult to categorize. Once this is done, it would be easier to determine the appropriate degrees of sentences. These problems are, of course, addressed on a case by case basis which is probably the most appropriate way to go. Like all other laws, the law regarding GNM in UK is still in the process of evolution and some important strides have been made to make it better. Making hospitals accountable for their inadequate supervision is a very important step. English law is still a source of guidance for many other countries. As more and more precedents are created, the law would become richer. Also, the severity of sentences would cause doctors to be very careful in their daily practice. The knowledge that their negligence would have dire consequences would actually improve their performance and the patients would be provided with better care. Therefore, the future of UK law regarding GNM is likely to be a bright one. References Attorney-General’s Reference No. 2 (No 2 of 1999) 2000 3 AER 182 Attorney-General v Wurrabadlumba [1990] 74 NTR 5 Bailey v Ministry of Defence [2008] EWCA Civ 883 BBC report ‘Grace Adeleye guilty of killing baby in botched circumcision’ 14 December 2012. Retrieved 01-04-2014 from http://www.bbc.com/news/uk-england-manchester-20733674 Bowcott, O., 2013, ‘Surgeon convicted of patient manslaughter through negligence’ The Guardian, Tuesday 5 November 2013. Retrieved 01-04-2014 from Callaghan v R [1952] 87 CLR 15 Canning—Kishver v Sandwell and West Birmingham Hospitals NHS Trust [2008] EWHC 2384 (QB) "Companies face record corporate manslaughter fines". Solicitors Journal. 2007. Retrieved 2014-04-01. Connelly, R., Tracking “Eric the Red,” Houston Press, May 28, 1998. "Consultation Paper on Sentencing for Corporate Manslaughter" (PDF). Sentencing Guidelines Council. Retrieved 2014-04-01. Corporate Manslaughter and Corporate Homicide Act 2007 (UK) S 1(1) Corporate Manslaughter and Corporate Homicide Act 2007 (UK) S 1(6) Corporate Manslaughter and Corporate Homicide Act 2007 (UK) S 2 Corporate Manslaughter and Corporate Homicide Act 2007 (UK) S 9 Corporate Manslaughter and Corporate Homicide Act 2007 (UK) S 10 Criminal Justice Act 2003 s 143(1) Evgeniou v R [1964] 37 ALJR 508 Gibson, C., ‘Material contribution causation in clinical negligence cases,’ 2008, 14(6), The AVMA Medical & Legal Journal, 239-242 Lanham et al (2007), Criminal Laws in Australia, The Federation Press:NSW Model Criminal Law (AUS) S 5.1.11 Nydam v R [1977] VR 430 Quick, O., ‘Prosecuting Medical Mishaps,’ (2006), 156(7215), New Law Journal, 394-395 R v Adamoko [1995] 1 AC 171, [1994] 3 WLR 288, [1994] 3 All ER 79, 99 Cr App R 362, HL R v Bateman 19 Cr App R 8 R v Holnes [1970] Tas SR 74 R v Kovvali [2013] All ER (D) 48 (Jun) R v Scarth [1945] St R Qd 38 R v Sellu; Ex parte DPP (Cth) [2012] QCA 345 (7 December 2012). R v Southampton University Hospital NHS Trust [2006] EWCA Crim 2971 Samanta, A. and Samanta, J., ‘Charges of Corporate Manslaughter in the NHS,’ (2006) 332, British Medical Journal, 1404-1405. Tesco Supermarkets Ltd v. Nattrass [1972] AC 153; Attorney Generals Reference (No. 2 of 1999) [2000] QB 796, CA Read More