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University of Otago Law Festschrifts |
Last Updated: 31 May 2019
1 THE CRIMINAL PROCESS AND MEDICAL PRACTITIONERS:
SHIELD AND SWORD
Margaret Brazier*
PETER SKEGG
It is a pleasure and an honour to contribute to this Festschrift to celebrate the work of Professor Peter Skegg. He is an inspiration, not just to those of us who have followed him into the fascinating realm of research into the vexed relationship between law and medicine, but to all legal scholars. Peter’s books and papers are erudite, yet wholly accessible. The passion that he has for his work shines through every sentence. He is a committed teacher. The trend to devalue teaching and focus on niche research has never captured Peter. The concept of the professor as the leader of a scholarly community which embraces the newest of first year students to the most glittering of academic stars informs his life’s work. Peter reaches out to scholars way beyond the shores of his beloved New Zealand, to help and guide many of us across the globe. In the development of the study of law and medicine, Peter led the way, writing about medical law well before it became fashionable – or even respectable. He is the reason that I moved away from the well-tilled fields of Tort to join the growing group of medical lawyers. Peter’s work spans the whole field of medical law but the role of the criminal process plays a large part in much of his work. Criminal law for him, as Tort for me, remains another love. It thus seemed appropriate to choose the criminal process and medicine as the topic for this essay in his honour.
INTRODUCTION: DOCTORS AND THE CRIMINAL PROCESS TODAY
In England and Wales at present, a growing number of doctors express concern and anger at what they perceive as a frightening rise in the number of doctors (and other health professionals) facing prosecution for gross negligence manslaughter (GNM). Gaol sentences imposed on doctors convicted of GNM arouse particular ire, resulting in claims that the law is stifling medicine, that doctors will retreat into defensive medicine and /or vote with their feet to avoid high risk specialties. The question of prosecutions for ‘medical manslaughter’ and its alleged effects on the profession was of course a cause célèbre in New Zealand in the 1990s and gave rise to a forceful and successful campaign, the New Zealand Medical Law Reform Group, a group which included doctors and lawyers and resulted in a
change in the law that made prosecutions less likely.1 As an English ‘outsider’, I shall not attempt to repeat or critique the New Zealand story. I can do no better than refer the reader to Peter Skegg’s own account.2 It is important to recall that in New Zealand, unlike England, before the law was amended in 19973 negligent manslaughter required only proof of simple and not gross negligence.
In England and Wales, in 2006, Ferner and McDowell contended that the number of doctors charged with manslaughter had risen sharply since 1990.4 They argued that the Crown Prosecution Service (CPS) prosecuted too many cases and went so far as to say that:5
... charging doctors with manslaughter following a medical error may be an emotionally satisfying way to exact retribution, but if individual doctors are singled out for punishment it will become much harder to foster an open culture.
Writing in 2013, Griffiths and Sanders’ research examining CPS files from 2004- 2009 questioned the reliability of the evidence as to numbers of prosecutions and any suggestion that the CPS had an appetite for prosecuting doctors.6 Griffiths and Sanders suggest rather that:7
* Centre for Social Ethics and Policy, School of Law, University of Manchester. I am grateful to
my colleagues, Danielle Griffiths and Hannah Quirk for their helpful comments on an earlier draft of the paper and to the Arts and Humanities Research Council for their support of two research projects “The Impact of the Criminal Process on Health Care Ethics and Practice”.
5 At 314.
6 Danielle
Griffiths and Andrew Sanders “The Road to the Dock: Prosecution
Decision-Making
in Medical Manslaughter Cases” in Griffiths and Sanders, above n 2,
117.
7 At 156.
... numerous cases of gross neglect or recklessness ... are not prosecuted because the inherent difficulties of GNM are exacerbated by the medical context and further exacerbated by prosecutors’ reluctance to prosecute without – to put it crudely – ‘badness’ on the part of the suspect.
In 2015, after Mr David Sellu, a surgeon with over 40 years impeccable practice behind him, was gaoled for GNM in 2013,8 and a number of other controversial prosecutions were reported in the media, charges were again levelled that health professionals were at an unfair and damaging risk of being imprisoned for mistakes.9 In the court of medical opinion, the criminal process found itself back in the dock.
Nor is the reach of English criminal law relating to medical practice any longer necessarily limited to medical malpractice causing death. Following a series of high-profile scandals, the extension of the crime of wilful neglect to all patients receiving health care,10 not simply patients who are mentally ill or mentally incapacitated, and the prosecution of breast surgeon, Ian Paterson, on 20 counts of recklessly causing grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861 and one charge of causing grievous bodily harm with intent contrary to section 18 of the 1861 Act, may exacerbate doctors’ worries.11 The criminal process is seen by some doctors as a threat to medicine – a sword held to the doctor’s throat.
The modern perception of the criminal process as the enemy of medical practitioners is paradoxical once we examine the history of medical practice and regulation in England. From the foundation of the London College of Physicians12 in 1518 to the 18th century, the physicians (who perceived themselves as the medical elite) used the criminal process as a shield behind which they asserted the supremacy of their model of medicine and attempted to entrench a hierarchy dominated by the College. They embraced the criminal process to police their
8 Leave has now been granted for Mr Sellu to appeal against both conviction
and sentence.
9 Over 300 doctors signed a letter protesting about Mr
Sellu’s conviction and sentence; see
“Doctors Sign Letter Expressing Worry Over Criminalisation of Surgeon” The Guardian (online ed, England, 6 August 2015) <www.theguardian.com/society/2015/aug/06/doctorssign-letter-expressing-worry-over-criminalisation-of-surgeon>.
10 See Criminal Justice and Courts Act 2015 ss 20-25; and Amel Alghrani and others “Healthcare Scandals in the NHS” (2011) 37 J Med Ethics 230.
11 See “Breast Surgeon Ian Paterson Charged with Wounding Patients” BBC News (online ed, England, 18 January 2016) <www.bbc.co.uk/news/uk-england-birmingham-35343099>.
12 The College became known as the Royal College of Physicians in the reign of Charles II. The exact date of the change is unknown. The College is referred to as ‘Royal’ in the Medical Act 1858 but it seems that formally the title of Royal College was only confirmed in the Royal College of Physicians of London Act 1960.
own fellowship, to seek to control other ‘qualified’ licensed practitioners of orthodox medicine, the surgeons and apothecaries, and to drive out other kinds of healers, ‘empirics’ as they were then known, what today we might describe as practitioners of alternative medicine. In the 19th century leading up to, and in the years immediately after, the foundation of the General Medical Council in 1858, the partially united (‘orthodox’) medical profession encouraged the use of the criminal law to suppress alternative (‘unorthodox’) models of medicine that the registered medical practitioners considered to be ‘quackery’. Later in the 19th century the established and state-sanctioned medical profession ceased to resort to the criminal process as a shield to protect its status. And for the next hundred years or so, doctors had little to fear in terms of the criminal process being used as a sword against them.
Doctors in England enjoyed a short lived age of deference in which the judges were loath to find qualified medical practitioners civilly or criminally liable for errors of almost any degree.13 The famous or infamous Bolam test14 was extended and extended to make any challenge to medical judgment hard to mount.15 In 1981, the direction to the jury in the trial of Dr Leonard Arthur for the attempted murder of a newborn baby with Down’s Syndrome illustrated the culture of deference. Farquharson J instructed the jury to “think long and hard” before finding that “doctors, of the eminence we have heard, representing to you what medical ethics are ... have evolved standards which amount to committing crime.”16 As the 20th century drew to a close, judicial attitudes began to change. In relation to civil liability, the courts gradually reined Bolam in17 and re-asserted the authority of the courts to determine what constituted breach of the doctor’s duty of care.18 In 2015, the United Kingdom Supreme Court in Montgomery v Lanarkshire Health Board19 finally buried the decision in Sidaway v Royal Bethlem
13 See Margaret Brazier “The Age of Deference – A Historical
Anomaly” in Michael Freeman (ed) Law and Bioethics (Oxford
University Press, Oxford, 2008) 464; John Harrington “‘Red in Tooth
and Claw’: The Idea of Progress in Medicine
and the Common Law”
(2002) Social and Legal Studies 211- 231.
14 Bolam v Friern Hospital
Management Committee [1957] 2 All ER 118.
15 So Bolam became the benchmark not just for proof of clinical
negligence but expanded to cover (inter alia) information disclosure, the
lawfulness of withdrawal of treatment, and the care of non-capacitous adults.
See Brazier, above n 13,
at 466-67; Jose Miola Medical Ethics and Medical
Law: A Symbiotic Relationship (Hart Publishing, Oxford, 2007).
16 R v
Arthur (1981) 12 Butterworths Medico-Legal Reports 1 at 22.
17 Margaret Brazier and Jose Miola “Bye-Bye Bolam: A Medical Litigation
Revolution” (2000) 8 Medical Law Review 85-114.
18 Bolitho v City
and Hackney Health Authority [1997] UKHL 46; [1998] AC 232 HL.
19 Montgomery v
Lanarkshire Health Board [2015] UKSC 11.
Hospital20 and followed courts in New Zealand and much of the Commonwealth in asserting that in obtaining consent to treatment, doctors must give patients the information that a reasonable patient in the particular circumstances of the claimant would wish to know. The robust language of the Justices in Montgomery emphasising that “patients are now widely regarded as persons holding rights rather than as the passive recipients of the care of the medical profession”21 signalled to the profession and to patients that the days when English law endorsed the notion that ‘doctors know best’ were well and truly over. No single decision of the courts expressly, in relation to criminal liability for GNM, indicated a change of attitude on criminal liability but the indications in other areas of health care law that no special treatment would be afforded to doctors formed the background for the renewed concerns within the medical profession about the ‘threat’ of prosecution for GNM.
1. THE EVOLUTION OF THE MEDICAL PROFESSION AND THE SHIELD OF THE CRIMINAL PROCESS
If the decline of a culture of deference to doctors prompted fear of the criminal process, it is ironical that the criminal process played such a major role in establishing the high professional status of the profession, a status that itself gave birth to the culture of deference. In late medieval and early modern England, a host of different ‘healers’ offered treatment to the sick. While the treatment and the ‘cures’ offered by the healers may seem rudimentary or plain quackery22 to the 21st century mind, health care in the 16th to 19th centuries was a thriving market place.23 The sick individual was as concerned about his or her health as their descendants today and, in cities at least, medical services were widely accessible and not confined to the wealthy.24 The patient could choose to seek help from one of the three emergent and orthodox medical ‘professions’: physicians, barber-surgeons and apothecaries; or a variety of other healers ‘empirics’ such as herbalists, alchemists, ‘cunning women’; and often the mistress of the household or lady
20 Sidaway v Royal Bethlem Hospital [1985] UKHL 1; [1985] AC 871 HL.
21
Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [75].
22 But
so may much of the practice of ‘physic’ especially the
physicians’ reliance on astrology.
23 See Mark Jenner and Patrick Wallis “The Medical Marketplace” in Mark Jenner and Patrick Wallis Medicine and the Market in England and Its Colonies (Palgrave MacMillan, London, 2007) 1.
24 See Margaret Pelling The Common Lot: Sickness, Medical Occupations and the Urban Poor (Longman, London, 1998). Pelling also demonstrates that outside London the tri-partite division into physicians, surgeons and apothecaries was much less clear than the letter of the laws would suggest and that in many rural areas many surgeons practised unlicensed but having undertaken an extensive apprenticeship.
of the manor.25 In some cases the line between medical care and supernatural interventions, even witchcraft, was thin. In 1511 Parliament enacted a statute “An Act for the Appointing of Physicians and Surgeons”. The Act declared that “physic and surgery” were being undertaken in the realm by “a great multitude of ignorant persons” including illiterate people, “common artificers, as smiths, weavers and women” took on “great cures and things of great difficulty” to the “great infamy to the faculty and grievous hurt, damage and destruction of many of the king’s liege people, most especially of them that cannot discern the uncunning from the cunning”. To remedy this perceived ill, the Act prohibited any person from undertaking “to exercise or occupy as physician or surgeon” unless he was examined and licensed by the Bishop of London in relation to practise within the City of London or within seven miles of the City. If the physician or surgeon was to practise outside that area, he must be examined and licensed by his diocesan bishop. In exercising this licensing function the bishops must be advised by four doctors of physic in relation to physicians or four surgeons from the Faculty in relation to surgeons.26 Breach of the law would result in forfeiture of any fees paid to the accused, one half to be remitted to the Crown and the other to any patient who might sue to recover the fee paid to the unlicensed practitioner. The 1511 Act began a process of seeking to privilege ‘orthodox’ medicine.
In 1518 the College of Physicians obtained a royal charter from Henry VIII, a charter confirmed by statute in 1522.27 The Act granted the power to license the practice of ‘physic’ in the City of London or seven miles around the city to the College. The College acquired the power not just to license physicians but also to investigate and punish unlicensed practice and any malpractice (mala praxis) on the part of its own licentiates. No-one could practise ‘physic’ unless licensed by the College. The College could thus pursue not only those healers (‘empirics’) who did not belong to any of the three professions, but also indict any surgeon or apothecary who stepped outside his own domain and purported to practise ‘physic’. The College Censors (appointed to enforce the College ‘law’) acted as a version of police force and prosecuting authority. Any unlicensed person found to be practising ‘physic’ faced a draconian fine of £5 a month for each month of unlawful practice. College members accused of mala praxis could be and were presented to the criminal courts and fined or imprisoned. Effectively the College
25 At 1-16; and see Ian Mortimer “The Rural Medical Marketplace in Southern England c. 1570-1720” in Jenner and Wallis, above n 23, at 69.
26 A Guild (or Fellowship) of Surgeons was first established in 1368. In
1540, the surgeons and the barber-surgeons were amalgamated
to form the
Barber-Surgeons Company, a marriage ended by a statute of 1745 and the creation
of the new Company of Surgeons. In 1843
a Royal Charter (inter alia) changed the
name of the Company to the Royal College of Surgeons.
27 ‘The
Privileges and Authority of Physicians in London’.
sought to dominate medicine. Surgeons were reduced to performing the limited kinds of surgery feasible in the years before anaesthesia and adequate infection control, such as amputations and the removal of some tumours. Apothecaries could make up and sell medicines. Diagnosis and prescription of appropriate treatment was reserved to the physician. A sick person would in theory need to summon a physician who would diagnose his ill often by sniffing urine and/or consulting his astrological chart. Rarely did physicians examine patients. The physician might then recommend blood letting and a surgeon be called in to carry out the procedure or he might ‘prescribe’ a medicine for the apothecary to make up and sell to the patient.
The College enjoyed apparent great power and in its jurisdiction over its own members might have been a significant regulator of good practice empowered by their Charter and the 1522 statute to use the criminal law to enforce such practice. In the event, the Censors28 and the College became increasingly focused on enforcing petty rules on matters such as dress and etiquette, it had scant regard for due process, and was obsessed by protecting its own monopoly and hunting down other ‘doctors’ or healers who trespassed on its domain, especially upstart apothecaries.29 Apothecaries were more accessible to the less wealthy patient and more numerous than physicians.30 Calling in both the physician and the apothecary meant paying twice. Many apothecaries in practice attended the patient, diagnosed his illness and made up the necessary medicine. Most of their patients were content with the care offered by the apothecary. The College nonetheless pursued and bankrupted many offending apothecaries. In 1703, the apothecaries fought back. The apothecary William Rose, was convicted by a jury of unlawful practice and the conviction was upheld by the Court of Queen’s Bench. With the backing of the Society of Apothecaries, Mr Rose sought a writ of error before Parliament31 arguing that while he both advised the patient and sold him medicine, as he did
28 The College Censors also unsuccessfully sought to control publication of papers and books on medicine and thus limit the dissemination of medical knowledge by unorthodox practitioners or laypeople; see Margaret Brazier and Suzanne Ost Medicine and Bioethics in the Theatre of the Criminal Process (Cambridge University Press, Cambridge, 2013) 19.
29 The College also sought to undermine the surgeons notably by its machinations resulting in the so-called Quacks’ Charter 1543 (“A Bill that Persons, being no common Surgeons, may minister Medicines, notwithstanding the Statute”): see Benjamin Woolley The Herbalist (HarperCollins, London, 2004) 37-38.
30 From 1428 apothecaries were members of the Worshipful Company of Grocers. By the mid 15th century specialist apothecaries sought to establish an independent (professional) identity. In 1607, the apothecaries obtained a discrete identity within the Grocers’ Company and in 1617 the Worshipful Society of Apothecaries was incorporated by a Royal Charter.
31 William Rose (Plaintiff in Error v the College of Physicians (London) (1703) English Reports 857.
not charge for the advice he was not practising ‘physic’. Gratuitous advice was not purporting to practise as a physician. The legal argument was fairly specious but Mr Rose succeeded and the conviction was quashed. No reasons were given by the peers constituting the House of Lords but in the hearing itself the battle was ferocious and the issue at stake was essentially the justification of and social desirability of the monopoly claimed by the College. The case advanced by the apothecaries as to their competence, ability and willingness to ensure access to treatment for poorer citizens and the risks to health if no apothecary could act alone was implicitly accepted by the Court of Parliament. The College’s claims that apothecaries were money grubbing lower orders who lacked the requisite medical skills were rejected.32 Mr Rose’s victory ended the physicians’ attempts to use the criminal process to regulate the whole of medical practice.33
While conflict between the three branches of orthodox medicine did not entirely disappear, the orthodox practitioners more and more turned their attention to joint efforts to suppress alternative medicine and to do so deployed the criminal process in what they claimed to be a campaign against ‘quackery’. That campaign developed largely contemporaneously with the successful pressure for reforms of medical regulation to introduce a unified system for the registration of orthodox practitioners, to “unite the scattered members of our profession into one body.”34 The Medical Act 1858 finally established the General Council of Medical Education and Registration. Unity under the 1858 Act was only partial. The Royal College of Physicians, the Royal College of Surgeons and the Society of Apothecaries retained independent licensing powers. Any doctor successfully qualifying to receive a licence from any of the three bodies was entitled to be registered by the General Council.35
32 See Brazier, above n 13, at 470-471.
33 Toby Gelfand “The History of the Medical Profession” in WF
Bynun and Roy Porter (eds) Companion Encyclopaedia of the History of Medicine
(Routledge, London, 1993) 1119 at 1125 7.
34 Lancet 31 (1838) 63 at
63.
35 Unlike the two Royal Colleges, the Society of Apothecaries had no formal prohibition against the licensing of women and it was via this loophole that Elizabeth Garrett Anderson was able to qualify to be England’s first modern era female doctor; see Jo Manton Elizabeth Garrett Anderson (Methuen and Co, 1965) at 114-117. However Dr Garrett Anderson was not as such the first female doctor in England. In medieval and in early modern England there is evidence that a number of women practised as both apothecaries and surgeons; Monica Green “Women’s Medical Practice and Health Care in Medieval Europe” (1989) 14 Signs 434.
2. OUTLAWING QUACKERY OR PROTECTING A MONOPOLY36
The founding editor of the medical journal The Lancet, Thomas Wakley,37 was at the forefront of the orthodox practitioners’ campaign against quacks, opining in 1836 that “[n]ever have quacks, quackish doctrines and quack medicines, exercised a greater influence over the minds and bodies of people of this country as they exert in this present epoch”.38 A surgeon-apothecary himself, Wakley was also a passionate critic of both the Royal Colleges of Surgeons and Physicians and the Society of Apothecaries and a leading proponent of radical reform and unification of the orthodox medical professions.39 He and his colleagues made good use of the criminal process in attacking the ‘quacks’. The notorious case of Mr John St John Long illustrates the tactics deployed by the orthodox against the unorthodox healers.40 St John Long began his career as an artist but later claimed to have discovered a cure for consumption (tuberculosis). His ‘cure’ involved inhalation of certain vapours and the application to the skin of an irritant substance that produced a wound. He treated Catherine Cashin (who probably did not have the disease). Her family expressed concern about the suppurating wound on Catherine’s back. St John Long pronounced the wound to be “in a beautiful state”.41 A few days later Catherine died after days of pain and constant vomiting. The family sought the help of Wakley to assist them at the inquest. Several surgeons gave ‘expert’ evidence of the dangers of St John Long’s remedy and that it was the cause of Catherine’s death. The coroner’s jury returned a verdict of manslaughter at which “the many doctors crowded in the courtroom clapped and stamped their feet”.42 St John Long was then indicted and convicted of manslaughter. He was fined £250.43
36 A comprehensive and critical account of the 19th century campaign against unorthodox practitioners can be found in Michael Brown “Medicine, Quackery and the Free Market: The ‘War’ Against Morison’s Pills and the Construction of the Medical Profession, c. 1830 – c. 1850” in Jenner and Wallis, above n 23, at 238.
37 See David Sharp “Thomas Wakley (1795-1862): A Biographical
Sketch” (2012) 379 The Lancet 1914, and see Ian Burney Bodies of
Evidence Medicine and the Politics of the English Inquest, 1830-1926 (John
Hopkins University Press, Baltimore, 2000) for an account of Wakley’s
campaign to medicalise the coroner’s inquest.
38 Thomas Wakley (1836)
25 The Lancet 948 at 948, discussed in Brown, above n 36, at 238.
39
Wakley’s own proposal for a London College of Medicine came to nought.
40 See Sandra Hempel “John St John Long: Quackery and
Manslaughter” (2014) 383 The Lancet 1541, and see “Extraordinary
Inquest – Mr John St John Long” Spectator Archives 28 August
1830.
41 Hempel, above n 40, at 1541.
42 At 1541.
43 R v John St
John Long (1830) 172 English Reports 756.
The tactics used in the case of St John Long in relation to the death of Catherine Cashin were repeated in other attacks against the so called ‘quacks’. A particular target of orthodox practitioners was James Morison and his associates. As Michael Brown recounts,44 Morison developed a brand of pills, No 1 and No 2, described by him as “The Vegetable Universal Medicine”, a remedy for every ill.45 Morison made huge profits from his pills. He also attacked orthodox medicine with a vengeance describing surgery as a “bastard science” and orthodox doctors as “ignorant, incompetent, vicious and greedy”.46 In pursuance of his battle with the orthodox doctors Morison advanced his own system of “Hygeiaism”47 contending that all disease was caused by “obnoxious matter” in the blood. Removing this “matter” from the blood with Morison’s pills would cure disease.48
Three prosecutions were brought,49 not against Morison himself, but against his agents responsible for selling his ‘Hygeiain’ remedies. The campaign against ‘Hygeiaism’ was carefully deployed following the pattern set in the St John Long case. Orthodox doctors first utilised the coroner’s inquest to seek to establish “scientifically” that Morison’s pills caused or hastened death, followed by high profile prosecutions for manslaughter.50 The combination of evidence at the inquest used to bring about a criminal prosecution and a high level of publicity very much foreshadows the complaints that some doctors today have about the way the criminal process is used against them now.
Joseph Webb was Morison’s agent in York and was called to attend a sick apprentice and administered huge doses of the Universal Remedy. The boy’s condition deteriorated and some days later a surgeon was called in who diagnosed advanced smallpox. Sadly the boy died within hours. At the instigation of the boy’s mother an inquest was held. Four orthodox doctors, two physicians and two surgeons testified that the pills had accelerated the boy’s death, one arguing that the pills directly caused the death ‘by inflaming his stomach and intestines’. The coroner’s jury returned a verdict of manslaughter (with just one dissenter). Webb was then tried at York Assizes. Several orthodox experts testified against
44 See Brown, above n 36.
45 At 241.
46 At 242.
47 Named after the Greek goddess of medicine, Morison invented his own
comprehensive alternative system to orthodox medicine.
48 Brown, above n 36,
at 240-244.
49 At least nine further cases against Morison’s agents resulted in
verdicts by coroners’ juries that the pills had accelerated
death but
there was insufficient evidence for prosecutions: Brown, above n 36, at
246.
50 At 244.
Webb and only one orthodox doctor testified on Webb’s behalf. Many members of the public expressed their faith in the remedy. The judge noted that the medical experts with just one exception recognised the pills as the cause of death. Webb was convicted and gaoled for six months.51 Two other Morison’s agents, Robert Salmon and Thomas La Mott, were also convicted of manslaughter after patients died subsequent to having taken large doses of Morison’s pills on their advice.52
The ‘victory’ of the orthodox practitioners was perhaps more partial than Wakley and his colleagues would have wished. A second prosecution of St John Long on broadly similar facts resulted in his acquittal.53 In the series of prosecutions of unlicensed practitioners for GNM, judges consistently declined to accede to arguments that simply because the accused was an unlicensed practitioner, if his intervention resulted in the death of a patient, a felony was committed. Prosecutors invoked a dictum from Lord Coke54 that while if a licensed medical man administered medicine to a patient without any felonious intent, yet with the result that he died within three days, that would not amount to homicide but “if one not be of the mysterie of a physitian or chirurgion take upon him the cure of a man and he dieth of the potion or medicine this is ... covert felony”. 55 Judges preferred the opinion of Lord Chief Justice Hale who declared it was erroneous to think that if the accused “be no licensed chirurgeon or physician that occasioneth this mischance that then it is felony”.56 Be the practitioner licensed or unlicensed, for the accused to be convicted of homicide it must be shown that he acted with gross negligence, out of grossest ignorance, or the most criminal inattention. It mattered not “whether the individual consulted the president of the College of Physicians, the president of the College of Surgeons or the humblest bone-setter in the village”.57 The most that might be said to favour the licensed practitioner was that proof of gross ignorance might be easier to establish in relation to the unlicensed doctor. So Lord Lyndhurst summing up in the trial of Joseph Webb said if:58
51 R v Joseph Webb (1834) 174 English Reports 140.
52 Brown, above
n 36, at 246-247.
53 R v John St John Long (1831) 172 English Reports
767.
54 Were the dictum of Coke to be accepted then unlicensed practice resulting in death would constitute unlawful act manslaughter with no requirement that gross negligence need to be established.
55 Edward Coke The Fourth Part of the Institutes of the Laws of England (Clark, London, 1817) at 251.
56 Matthew Hale Historia Placitorum Coronae: The History of the Pleas of the Crown (RH Small, Philadelphia, 1736) at 429.
57 R v John St John Long (1830) 172 English Reports 756 at 759; and
see R v Van Butchell (1829) 172 English Reports 576.
58 R v
Joseph Webb (1834) 174 English Reports 140 at 142.
... where proper medical assistance can be had, a person totally ignorant of the science of medicine takes on himself to administer a violent and dangerous remedy to one labouring under disease and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter.
In refusing to favour the licensed practitioner the judges in the first half of the 19th century were less than impressed by the policy arguments advanced by the orthodox practitioners to seek to suppress unlicensed practice. In R v John Williamson, an unlicensed man had for many years acted as a man-midwife “among the lower classes of people”.59 He had over the years successfully delivered many women. Williamson was indicted for murder and manslaughter after he tore away part of a prolapsed womb mistaking it for the placenta and the woman died from the tear to the mesenteric artery. Directing the jury, Lord Ellenborough stated that it was essential to any conviction for manslaughter that they were satisfied that he was guilty of criminal negligence and misconduct in respect of his care of this particular patient. Want of skill should not be presumed, the defendant’s record of successful deliveries showed that he must have had some skill. Williamson was acquitted. In the second trial of R v St John Long, Park J reiterated that “experience may teach a man sufficient”.60 Judges appeared sceptical of the claims to superior skills of the licensed practitioner and anxious not to create any disincentives to the continuing practice of practitioners who acquired their skill from experience and whose services might be more readily accessible to the poor. Judicial deference was not to be found in the judgments of the courts at least prior to 1858 and the union of the divided orthodox professions.
After the Medical Act 1858, Ferner and McDowell suggest that attitudes changed, citing the case of R v William Crick61 where a herb-doctor (medical botanist) was charged with manslaughter after administering a dose of lobelia which the prosecution contended caused the child’s death.62 Pollock CB expressed this view apparently favourable to orthodox medicine:63
If the prisoner had been a medical man I should have recommended you to take the most favourable view of his conduct, for it would be most fatal to the efficiency of the medical profession if no-one could administer medicine without a halter round his neck.
59 R v John Williamson (1807) 172 English Reports 579 at 579.
60
R v John St John Long (1830) 172 English Reports 756 at 759.
61 R v
William Crick (1859) 175 English Reports 835.
62 Ferner and McDowell,
above n 4.
63 R v William Crick (1859) 175 English Reports 835 at
835.
His Lordship however also instructed the jury to take note that it was no crime for anyone to administer medicine. A crime was committed only if the medicine were administered “so rashly and carelessly as to produce death; and in this respect there is no difference between most regular practitioner and the greatest quack”64 (my emphasis). Pollock CB expressed a respect for medical practitioners not to be found in many earlier judgments but re-iterated that the law which governs liability for GNM is one and the same for the qualified and registered doctor, the unqualified ‘alternative’ practitioner, or indeed any person whatever his profession or trade.65
One final point might be made about the 19th century campaign against quacks. While the criminal courts consistently maintained that there was no rule or presumption that an unorthodox practitioner should be guilty of manslaughter or any other felony simply because the patient died, the judges noted that unlicensed practice before 1858 might contravene a number of statutes notably the Acts of 1511 and 1522 enacted in the reign of Henry VIII (discussed above). These sought to limit the practice of physic and surgery to licensed persons and provided that fraudulently pretending to be a licensed person might of itself be a crime. Why then did the battalions of the orthodox not pursue the ‘quacks’ for unlicensed practice or fraud? The answer may well be that defining practising ‘physic’ then, and medicine today, is nigh on impossible. When a parent gives his child an over the counter medicine for a fever, an aunt helps pull out a splinter from a niece’s knee, a colleague helps clean and bandage a wound after a fall, are they practising medicine? To this day the Medical Act 1983 (now heavily amended) does not attempt to proscribe unregistered persons from practising medicine or make practice without the licence now required unlawful. A criminal offence is committed only if someone falsely claims to be a registered or licensed practitioner.66 Back in the 19th century, ‘quacks’ such as Morison and St John Long made no such claims; they proudly advertised their difference from, and contempt for, orthodox medicine.
3. THE 21ST CENTURY: A SWORD AT THE HEART OF MEDICINE?
The days when the nascent medical profession(s) embraced the criminal process as a means to establish their model of medicine and to single out orthodox
64 R v William Crick (1859) 175 English Reports 835 at 835.
65 Note that in R v Prentice, Sullman, Adomako and Holloway [1993] 4
All ER 935, the fourth appellant Mr Holloway was an electrician.
66 Sections
49 and 49A Medical Act 1983.
practitioners as part of a learned profession (not simply a trade)67 are for many doctors shrouded in the mists of history. In England and Wales in the 21st century the criminal process is rather seen as to be feared and unfair in its application to health professionals. At the heart of doctors’ concerns lies the prospect of facing a criminal prosecution for GNM if, as a result of a medical error, a patient dies. Much has been written recently about ‘medical manslaughter’ and I shall not revisit the debate.68 The very term ‘medical manslaughter’ is useful shorthand but it is not a term of art69 and must not be taken to indicate that there is some special doctor-specific form of the offence of GNM. In this section of the paper I seek to understand the basis of doctors’ fears of the criminal process in its engagement with medicine today and to explore if there are parallels between the profession’s historical utilisation of the criminal process as a shield and the impression held by many doctors that it is now a sword at their throats.
The conviction and imprisonment of surgeon David Sellu in 2013 revived health professionals’ anxiety about the effect of prosecutions for GNM on them. Over 300 doctors protested that criminalising medical errors was not only unjust to the unfortunate doctor in the dock but a risk to patient care.70 They claimed that doctors, and in particular surgeons and anaesthetists, would be wary of conducting complex procedures carrying the risk that if the procedure went fatally wrong the doctor (and other health professionals on the team) could face criminal charges. Patients it might then be argued were more likely to die from want of much needed, but risky, interventions than from errors (even bad errors) made in carrying out such interventions.
Are such fears justified by the evidence? The first question we might ask is whether the number of prosecutions against doctors for a fatal error indicates that prosecution is a likely prospect. To put it dramatically, should a surgeon be on the alert for the CPS lurking in the operating theatre ready to pounce with a charge sheet. Reliable evidence about the incidence of prosecutions for ‘medical manslaughter’ is hard to come by. As is noted above, in 2006 Ferner and McDowell researched case reports and media sources and argued that there had been both a sharp rise in the number of prosecutions and an appetite for
67 See Pelling, above n 24.
68 See in particular the collection of essays in Griffiths and Sanders, above
n 6; Oliver Quick “Prosecuting ‘Gross’
Medical Negligence:
Discretion and the Crown Prosecution Service” (2006) 33 Journal of Law and
Society 421; Oliver Quick “Medicine, Mistakes and Manslaughter: A Criminal
Combination?” (2010) 69 Cambridge Law Quarterly 186.
69 Griffiths and
Sanders, above n 6, at 122.
70 The Guardian, above n 9.
retribution on the part of the CPS.71 Griffiths and Sanders conducted a study of CPS files covering all cases referred to the CPS over six years from 2004-2009. They found that there was no evidence in that limited time period of an increase in the number of doctors prosecuted for GNM. Out of 75 cases only four resulted in prosecution and only two resulted in convictions. In 7% of cases no decision was made, in just 5% a doctor was prosecuted. In 27% of cases it was determined that there was no breach of the duty of care. In 17% of cases there was evidence of breach of duty but not gross negligence and in 44% the cases failed on causation (there was evidence of gross negligence but not enough evidence that the gross negligence significantly contributed to the patient’s death.)72
While limitations in the way the CPS stored and recorded such cases meant that the evidence from the CPS files could not be wholly reliable, Griffiths and Sanders concluded that the CPS was reluctant to prosecute a doctor for medical manslaughter.73 On the basis of Ferner and McDowell’s case that numbers of prosecutions rose from seven between 1945 and 1990 to thirty-eight between 1995 and 2005, the bald number of criminal charges against doctors still remained low, less than four a year. In the six year period of their study Griffiths and Sanders found a prosecution rate of less than one a year.
All doctors make mistakes in the course of their careers. Inevitably some of those mistakes will be fatal. Very few faced prosecution at least up to 2009. Reliable data after 2009 is even harder to come by. A very rough trawl of cases reported in the media indicated that in 2015, eleven prosecutions were instigated in relation to five patient deaths alleged to result from gross negligence (excluding deaths in residential care or nursing homes). Four doctors, five nurses and an optometrist were charged with ‘medical manslaughter’, and one prosecution for corporate manslaughter was brought against an NHS Trust.74 No single year can
71 Ferner and McDowell, above n 4.
72 Griffiths and Sanders, above n 6, at
136-145.
73 At 156.
74 (1) Dr Bawa-Garba, (2) Sister Teresa Thomas and (3) Staff Nurse Isabel Amaro were charged with GNM in relation to the death of Jake Adcock: Dr Bawa-Garba and Staff Nurse Amaro were convicted and Sister Thomas acquitted; (4) Dr Errol Cornish and (5) Dr Nadeem Azeez were charged with GNM in relation to the death of Frances Cappucini: Dr Cornish was acquitted after the judge ruled that there was no case to answer and Dr Azeez had fled the jurisdiction; (6) Maidstone and Tunbridge Wells NHS Trust was charged with corporate manslaughter in relation to Ms Cappucini’s death: The Trust was acquitted; (7) Dr Adedayo Adedeji, (8) Nurse Gemma Pullen and (9) Nurse Margaret Miller were charged with GNM in relation to the death of Aisha Chitira; the prosecution offered no evidence at the start of the trial and the judge ordered a review of the CPS decision to bring charges.(10) Nurse Carrie-Anne Nash was charged with GNM in relation to the death of Phoebe Willis; Ms Nash was
offer evidence of a sustained increase in prosecutions and it might be noted that in 2015 more nurses than doctors faced criminal proceedings for GNM. In the light of the scale of the health care ‘business’ and the number of reported adverse events, even 11 prosecutions in a year is not of itself a surprisingly large number.
Numbers matter little to the doctor in the dock. What about the chances of conviction? Despite their evidence of an increase in the number of prosecutions, Ferner and McDowell reported a conviction rate of 30% from 1795 – 2005. Citing the CPS’s own guidance on bringing prosecutions requiring that there should be “a realistic prospect of conviction”, that the prosecutors should be satisfied it is more likely than not that a jury will convict, Ferner and McDowell argued that the CPS “charges too many doctors even by its own standards”.75 Griffiths and Sanders noted a conviction rate of 50% from 2004-2009.76 It will be noted (see above Note 74) that of the ten health professionals and one Trust charged with GNM in 2015, six of the professionals and the Trust have been acquitted in circumstances that cast some doubt on the initial decision to prosecute. In the absence of a full analysis of the cases at this time, no definitive conclusion can be drawn about the impact of the failed prosecutions on conviction rates overall or on the decision-making process of the CPS.
Conviction rates in cases where the total numbers of prosecutions are so comparatively small tell us little about the equity of the prosecution process.77 Griffiths and Sanders recount the painstaking examination of the evidence by the CPS before the CPS will commence a prosecution of a doctor for GNM. Any such case referred to them is examined in a depth rarely seen in other classes of prosecutions and by a process marked by reluctance, not enthusiasm, to prosecute health professionals. Neither the crude number of prosecutions brought nor the conviction rate, of themselves, explain the anxiety and anger that prosecutions for GNM generate within the medical profession.
In terms of impact on the profession as a whole maybe both prosecution and conviction rates matter less than they should in a wholly rational world. In the 19th century cases when orthodox doctors used the criminal process to pursue and harass ‘quacks’ and unlicensed healers, many cases, including the second prosecution of the notorious St John Long, failed in the sense that the jury
acquitted. (11) Optometrist Honey Rose was charged with GNM in relation to
the death of Vincent Barker.
75 Ferner and McDowell, above n 4, at 314.
76
Griffiths and Sanders, above n 6, at 137.
77 See Philip White “More Doctors Charged with Manslaughter are being Convicted, Shows Analysis” BMJ 2015;351:h4402.
acquitted the accused men. The publicity generated by the criminal proceedings, however, allowed the orthodox professionals to use the criminal courts as a theatre to advance their case; the very fact that charges were brought suggested badness in the ‘quack’. I am not for a moment suggesting that the CPS wishes to attack the medical profession today by prosecuting doctors, simply that the publicity of the criminal trial itself generates stigma attaching to the accused and to some extent her profession.
In evaluating the way criminal charges of ‘medical manslaughter’ affects the profession, much more than statistics needs to be examined. Doctors and other health professionals are much, much, more likely to be sued for clinical negligence or hauled before the General Medical Council or other regulator than to stand in the dock. Low statistical risks are however, only one part of the story and the seriousness and significance of the risk must be taken into account. In an essay examining the campaign to change the law on GNM in New Zealand, Alan Merry offers a graphic account of why, to the doctor ‘in the dock’, facing criminal charges differs so markedly from facing a civil claim for clinical negligence or disciplinary proceedings.78 He speaks of the prospect of arrest, finger printing, and restrictions on travel while awaiting trial. He notes the impact of coming to court as an accused person often under the supervision of a police officer. Finally and perceptively he poses the ‘Granny Test’. You tell your Granny you are in trouble at work. If you are being sued or hauled before the GMC she may well see such action against you as unfortunate but very much a professional matter. If you tell her you are being prosecuted “it may be difficult to persuade her that being prosecuted by the State for a serious crime does not imply that one is (at least allegedly) a bad person”79 (my emphasis).
Merry succinctly addresses what may well be the core of the problem with prosecutions for medical manslaughter; the perception that an accused and certainly the convicted doctor is a ‘bad person’ on a par with burglars, drug dealers and thugs charged with wounding after fights in a pub. This perception on the part of doctors (or their hypothetical Grannies) flows in part from a misunderstanding of the law defining GNM. It is re-enforced by the increasing likelihood that a health professional found guilty of GNM will face a prison sentence. ‘Surely no good person gets sent to gaol’ Granny may say. Until 2012, immediate imprisonment rather than a suspended sentence was rarely the outcome of a conviction for medical manslaughter. Where such a custodial sentence was imposed there would
78 Alan Merry “When Are Errors a Crime – Lessons from New
Zealand” in Erin and Ost, above n 1, 67, at 68-69.
79 At 69.
generally be either a concurrent conviction for other offences and/or evidence of attempts to pervert the course of justice by a cover up, such as altering records or evidence that the gross negligence was much more than an error and involved flagrant disregard for the safety of the patient. The furore about the conviction of David Sellu80 (currently the subject of an appeal) may be more related to the fact he was gaoled for two and a half years and the judge’s refusal to suspend the sentence, than the simple fact of his conviction. The later disclosure of a report from the private hospital where the patient died indicating a host of system errors that contributed to the death, and a failure by the hospital to disclose its own failings at Mr Sellu’s trial, exacerbated the anger of Mr Sellu’s supporters.81 To them a ‘good man’ who had made a grievous error was unjustly consigned to the company of the burglars and the thugs. If David Sellu could be locked up for a mistake, are all health professionals now at risk not just of the dock but of the clang of the gaolhouse doors.
The Sellu case itself is far from straightforward. Robert Wheeler, an eminent clinician himself, concludes that nothing in the judge’s sentencing remarks indicated that the judge lacked good reason to impose an immediate custodial sentence.82 Mr Wheeler notes that the judge’s findings of a lack of candour on the part of the accused and question marks about his truthfulness are factors which help to explain the immediate custodial sentence. The particular facts of this controversial case however, do not eliminate the fears of health professionals that a fatal error may now end in imprisonment and that such a consequence of professional negligence is inequitable. The fate of his appeal is awaited with interest.
4. THE CRIME OF GROSS NEGLIGENCE MANSLAUGHTER AND SENTENCING GUIDELINES
Health professionals prosecuted for GNM are not facing a charge unique to their occupation. GNM embraces any grossly negligent conduct that significantly contributes to the death of the victim. It matters not if the perpetrator is an electrician whose faulty workmanship causes a fatal house fire,83 a teacher whose
80 For an account of the facts of the case see Robert Wheeler “Prosecuting surgeons for manslaughter” (2014) 96 Annals of the Royal College of Surgeons England; Bulletin 108.
81 See “A Scalpel in the Back” The Daily Mail (online ed, 25 Jul 2015) <www.dailymail.co.uk/ news/article-3174741/A-scalpel/hospital-buried-evidence-clear-surgeon-jailed-patient-sdeath-40-year-exemplary-career-html>.
82 See “Manslaughter by Doctors” (2014) University Hospital
Southampton <www.uhs.nhs.uk/
HealthProfessionals/Clinical-law-updates/Manslaughter-by-doctors.aspx>.
83
See R v Prentice, Sullman, Adomako and Holloway [1993] 4 All ER 935.
negligent management of a school trip allowed a boy to drown,84 or even should I (perhaps in a slightly inebriated state) toss a lighted sparkler at a colleague yelling ‘catch’ but in the event the sparkler sets my unhappy colleague’s clothes on fire with a fatal result. Health professionals are simply subject to the general criminal law. They are neither singled out for especially harsh treatment nor privileged by their professional status. The problem then may be the nature of the offence of GNM itself. While at one point in time it appeared that the English courts required some evidence of subjective recklessness for the offence to be proven,85 the well known case of R v Adomako86 established that gross negligence was to be established on an objective standard. Lord MacKay stated that whether the defendant’s negligence amounted to gross negligence depended:87
... on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was place ... The essence of the matter which is supremely a jury question is whether, having respect 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 or omission.
For the health professional concerned about liability for GNM two points stand out. First, few commentators disagree that the definition of grossness in Adomako and other judgments is highly unsatisfactory.88 However, in the context of ‘medical manslaughter’ it needs to be noted that unless there is expert evidence89 from medical practitioners that the breach of duty is serious and gross, a prosecution, as Griffiths and Sanders show, is unlikely ever to begin or to succeed. Second, medically qualified commentators generally accept that if the health professional has behaved without regard for the patient’s welfare, deliberately ignoring or unjustifiably taking a risk, committing what Merry and McCall Smith describe as a violation,90 criminal responsibility is wholly appropriate. What is inequitable to medical critics is criminal liability for mere errors or technical slips.91 In effect the medical ‘experts’ condemn the notion of criminal responsibility for error, however
84 See the case of Paul Ellis discussed in Margaret Brazier and Neil Allen
“Criminalising Medical Malpractice” in Erin
and Ost, above n 1, 15,
at 26.
85 Brazier and Allen, above n 84, at 17-18.
86 R v Adomako
[1994] UKHL 6; [1995] 1 AC 171.
87 R v Adomako [1994] UKHL 6; [1995] 1 AC 171 at 187 (my
emphasis).
88 Margaret Brazier and Amel Alghrani “Fatal Medical Malpractice and Criminal Liability” (2009) 25 Professional Negligence 51.
89 See Oliver Quick “Medical Manslaughter and Expert Evidence: The
Roles of Context and Character” in Griffiths and Sanders,
above n 6,
101.
90 Merry and McCall Smith, above n 1.
91 Ferner and McDowell, above n
4.
serious the error. Criminal liability should involve moral culpability. In putting forward this view, those commentators feed into the much wider debate on criminal liability in the common law for negligence at all, an issue that had divided opinion among criminal justice scholars for centuries.92 What most legal scholars agree on is that if the criminal law is to hold a person liable for gross negligence it makes no sense that criminal responsibility should depend on the chance that the victim dies, on moral luck. A doctor who recklessly and without regard to the safety of the patient caused serious but non-fatal injury or even permanent disability to the patient was highly unlikely to face prosecution. The extension of the crime of wilful neglect to all patients93 and the instigation of prosecution against a surgeon for recklessly causing grievous bodily harm to several patients94 extends the potential scope for the criminal law to punish medical malpractice and limits the role of moral luck. Neither change in the law should, however, cause concern to the health professional who makes an error, even a bad error, for both wilful neglect and recklessly causing grievous bodily harm will require proof that the professional acted without regard to the welfare of the patient i.e. that he or she was guilty of a violation.
Radical reform of English law relating to GNM looks highly unlikely95 and the trend is for English criminal law to extend its remit to cover an ever greater range of careless behaviour and focus as much on outcome as culpability. The focus on outcome is to be seen most clearly in the context of sentencing and helps to explain the recent cases that have resulted in doctors convicted of GNM receiving immediate custodial sentences, rather than as seemed to be the case prior to 2012, having such sentences suspended.96 There are no sentencing guidelines specific to medical manslaughter. In an incisive paper following the successful prosecution and failed appeal against sentence by Dr Garg,97 Hannah Quirk explains the
92 Discussed in Brazier and Allen, above n 84, at 21-23.
93 See Criminal
Justice and Courts Act 2015, ss 20-25; and see Alghrani and others, above n
10.
94 BBC News, above n 11.
95 Law Commission recommendations (Law Com No 237 Legislating the Criminal
Code: Involuntary Manslaughter (1996) and Law Com Consultation Paper No 177
A New Homicide Act for England and Wales? (2005)) to reform the law on
homicide and replace GNM with an offence of killing by gross carelessness have
not been pursued. The
new offence while perhaps being less stigmatising in
removing the emotive term ‘manslaughter’ would in practice differ
little from GNM; see Oliver Quick “Medical Manslaughter; The Rise (and
Replacement) of a Contested Crime” in Brazier
and Allen, above n 84,
29.
96 Unless there were aggravating factors such as falsifying
records.
97 R v Garg [2012] EWCA Crim 2520
change in the law relating to sentencing and criticises its application to medical manslaughter.98 Section 143(1) of the Criminal Justice Act 2003 provides that:
In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.
In applying section 143(1) the Court of Appeal in R v Appleby, setting the minimum term to be served for a case of unlawful act manslaughter, held that the effect of section 143(1) was that crimes that result in death should be treated more seriously to give greater weight to the fact that the victim “has died in consequence of an unlawful act of violence.”99 The previous approach to sentencing for all forms of manslaughter which focused less on outcome and more on culpability was no longer appropriate. In Attorney General’s Reference (No 125 of 2010)100 the Court of Appeal made it clear that such an outcome-focused approach to sentencing applied to all forms of manslaughter including GNM. The scene was thus set for the appeal court in R v Garg to rule that there is “no special exception when manslaughter occurs in the context of gross medical negligence”.101 The cumulative outcome of the decision in Adomako and the evolution in the principles of sentencing for GNM is that doctors and other health professionals are at risk of imprisonment for serious error.102 It must however be emphasised that in such vulnerability to gaol for serious negligence, doctors are no worse off than any other person whose negligence results in death.
5. ARE ‘DOCTORS’ DIFFERENT?
If change to the general law to restore the need for subjective fault as a precondition for liability for GNM and/or to dilute the emphasis on outcome in sentencing guidelines is unlikely, is there any case for health professionals to be treated differently from others accused of GNM? A return to deference is highly unlikely and not to be welcomed. For health professionals to be treated differently
98 Hannah Quirk “White Coat Crime: The Need for Guidance in Medical
Manslaughter Cases” [2013] Criminal Law Review 871.
99 At 876,
referring to Appleby [2009] EWCA Crim 2693, [2010] 2 Cr App R (S) 36 at
[22].
100 Attorney General’s Reference (No 125 of 2010) [2011]
EWCA Crim 240.
101 R v Garg [2012] EWCA Crim 2520 at [45].
102 In 2015 Dr Bawa-Garba received a suspended sentence after her conviction for GNM relating to the death of Jake Adcock. The special circumstances of the case including the fact that Dr Bawa-Garba was bringing up her disabled son alone meant that no general principle can be deduced from this case on ‘medical manslaughter’.
there must be an evidence-based case that to do so is justifiable and desirable in the public interest. As I have argued in the earlier sections of this essay, first, the physicians in seeking control of all healers and dominance over the surgeons and apothecaries, and later, the partially united medical profession sought, in their deployment of the criminal law against unlicensed practitioners, to argue that ‘their’ model of medicine best protected patients. Orthodox doctors were different. For the most part the courts were unimpressed and far from convinced that the orthodox practitioners were any better healers than some of those they sought to condemn as quacks.103 The courts were reluctant to assist either the College of Physicians or the post 1858 ‘profession’ to create a monopoly in healing. Appeals to what Lord Coke called the “mysterie of the physitian or chirurgeon”104 met with little favour from his colleagues on the Bench.
Nineteenth century judges, while refusing to develop legal formulations of unlawful killing that would result in any presumption of guilt where the accused was not an orthodox practitioner, were however, concerned about the needs of patients and especially the poor, for health care. The ‘quack’ might have substantial experience in the skill he exercised even if he had no formal qualifications. Judges were anxious not to create disincentives that would result in experienced practitioners being forced out of practice leaving significant numbers of the sick and women in labour without access to care and treatments.105 Judges also stressed the importance of understanding, and ensuring that patients understood, that simply because an operation fails and the patient dies, this does not amount to evidence of manslaughter. Hullock B said that:106
... it would be most dangerous for it to get abroad, that, if an operation performed either by a licensed or an unlicensed surgeon should fail, that surgeon would be liable to be prosecuted for manslaughter.
Those who contend that health professionals today should be judged differently from others whose negligence causes death and that prosecutions for ‘medical manslaughter’ should be undertaken with caution place great emphasis on the following matters. (1) Criminal liability does not and cannot deter errors. (2) The nature of medical care, especially surgery and obstetrics, necessarily entails risk
103 See R v John Williamson (1807) 172 English Reports 579 and R v John St John Long (1830) 172 English Reports 756.
104 Edward Coke The Fourth Part of the Institutes of the Laws of England (Clark, London, 1817) at 251.
105 See R v John Williamson (1807) 172 English Reports 579 and R v
John St John Long (1830) 172 English Reports 756.
106 R v Van Butchell
(1828) 172 English Reports 576 at 579.
taking and if fear of criminal liability deters risk taking, in the end, patents will suffer. (3) Very many of the reported cases where health professionals have been convicted of GNM reveal multiple systems errors rather than individual fault alone.
The argument that ‘doctors are different’ and that there are good reasons of public policy to be cautious about prosecuting health professionals for GNM has tended to focus on the CPS, with critics arguing that the CPS, in determining if prosecution is in the public interest, should take into account the potentially damaging effects on health care as a whole. Griffiths and Sanders demonstrate that at least until 2009 the CPS seemed to operate on such a policy, being reluctant to prosecute doctors without some evidence of badness or subjective fault. Prosecutors denied that such reluctance derived from application of the public interest test suggesting that caution was largely motivated by awareness of the reluctance of juries to convict a doctor of GNM and thus pass the evidential test. Griffiths and Sanders go on to suggest that in requiring such evidence of ‘badness’ the CPS were at odds with the principles of the law set out by the courts that expressly reject the need for subjective fault.107 If the numbers of prosecutions are rising, addressing concerns about the impact of such prosecutions cannot be laid wholly at the feet of the CPS. The CPS enjoys a discretion to consider the public interest in prosecuting but cannot use that discretion simply to ignore principles of law as embodied in the case-law.
Does the current law allow for a margin of ‘leniency’ in judging the health professional who makes a fatal error? Some latitude may be discerned in Lord MacKay’s somewhat unhelpful formulation in Adomako with his emphasis on ‘all the circumstances.’ Further and specific guidance on the threshold at which negligence becomes gross would be helpful though far from easy to formulate.108 In the context of both criminal liability and appropriate punishment, two factors might be more clearly addressed to distinguish ‘medical manslaughter’ from at least some other cases of GNM.
(1) Might there be differences in culpability even accepting an objective test for GNM? In many cases of GNM and particularly in relation to any analogy with causing death by dangerous driving,109 the defendant chooses to engage in a risky behaviour or at least has the choice to refuse or withdraw from risk taking. In the example I give above where I chuck a firework in the direction
107 Griffiths and Sanders, above n 6.
108 Brazier and Alghrani, above n
88.
109 Quirk, above n 98, at 878-881.
of a colleague I created an unnecessary and unjustifiable risk, just as I would if I decide that in order not to be late for a 9.00 am lecture I would drive at 90 mph while checking my notes on my lap. The unfortunate teacher, Paul Ellis, found guilty of GNM when a ten year old boy drowned when he jumped into a mountain stream on a school trip to the Lake District could have altered the plans for open air swimming when he saw the state of the stream. The children might have been disappointed but the risk was not necessary. The surgeon and the anaesthetist have no choice but to take risks when they calculate that the potential benefits exceed potential harm. Failing to take the risk may result in different but equal or greater harm. If they make a gross error in that judgment so that objectively the risk was not justifiable they may be liable for GNM but is the wrongness of that error on a par with my choosing to drive dangerously to make my lecture on time? If the doctor does not cross the threshold between error and violation
I would suggest not. It might be noted however that a significant number of successful prosecutions for medical manslaughter do seem to indicate violation not simply error.110
(2) Are there public interest arguments that should at least be recognised in considering the liability of health professionals for GNM? The argument is often advanced that too ready resort to the criminal process will both deter professionals from taking risks and militate against the open culture needed to learn from and prevent errors.111 A surgeon who recognises that he or a colleague has made a serious mistake harming the particular patient and endangering other patients will be less likely to want to report the error if he fears that he or she or a colleague could end up in gaol. Fear of prosecution may inhibit candour. The introduction of a statutory duty of candour112 might in theory seem sufficient to counter such a claim in that candour is now mandatory. Professionals must report errors. Human nature will still mean that people will be reluctant and uncomfortable to place themselves or valued colleagues at risk of prosecution and doctors may thus have little incentive to embrace the duty of candour. If they fail to do so both the original error (even violation) and the breach of the duty of candour may go unnoticed and the opportunity to learn from error will be missed.
110 See Griffiths and Sanders, above n 6.
111 This argument is put forcefully by Merry and McCall Smith, above n 1; and
Ferner and McDowell, above n 4.
112 See Care Act 2014, s 81.
CONCLUSION
The relationship between medicine and the criminal process has changed over the centuries, from an age when doctors used or sought to use the criminal process to cement their professional status, to one in which some doctors see the criminal process as undermining that status. Concerns about the impact of prosecutions for medical manslaughter should not be lightly dismissed. Those concerns however would need to be shown to be much more than a simple plea to professional privilege and be grounded on hard evidence that resort to the criminal process was damaging patient care, and evidence that health professionals who face prosecution for GNM are in fact facing criminal liability for errors that indicate little by way of moral culpability. Absent such evidence there is no case that the doctor should be treated differently from the electrician. Understandably health professionals may look to a different analogy and contend that other professions, such as the legal profession or accountants, are not at risk of gaol for making bad mistakes. That claim is true but irrelevant. Lawyers, at least in jurisdictions where there is no death penalty, may pose a risk to clients’ bank accounts but not to their lives. And those professionals who serve in the armed forces face very similar dilemmas to the doctors. Those who deal with life and death bear more onerous responsibilities. There remains of course the question of whether the criminal process is an appropriate means of addressing careless but not reckless errors whoever the accused may be. The debate about the appropriate role the criminal law should play in relation to negligence continues. Doctors are impaled not on the point of sword aimed at the heart of medicine but caught in the crossfire of philosophical debate on the role of the criminal law in relation to negligently inflicted injury.
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