We have advised recently on a number of incidents where it is alleged that a doctor was criminally responsible for the death of his/her patient. Rachel Morse examines the current law behind gross negligence manslaughter allegations and offers some practical points.

Imagine the scenario. It is the end of a busy shift in A&E when patient A is admitted. The attending doctor reaches a rapid conclusion that the patient is, sadly, in the process of dying and that intervention would be futile. The attending relatives are upset with that decision. Patient A dies shortly thereafter.

Two months later, the doctor receives a request from the police to attend a formal interview under caution. The family has obtained evidence to suggest that A's presentation was treatable, the decision not to treat was negligent, basic medical tests were not undertaken and the independent expert providing that evidence considers the doctor's decision fell below basic medical care.

While this picture is, thankfully, uncommon, it does arise from time to time. The effect on the individual doctor subjected to these investigations is catastrophic, they are faced with potential criminal charges which may result in a custodial sentence and would, in any event, endanger their registration and livelihood.

The law

The case of R v Adomako (1995) sets down the current test for gross negligence manslaughter. The defendant was a locum anaesthetist at an operation to correct a detached retina. He failed to notice that a tube had become dislodged during the course of the operation which resulted in the patient being deprived of oxygen. The patient suffered a cardiac arrest and died. The defendant was convicted of manslaughter and appealed to the House of Lords (as was) on the basis that gross negligence was not the correct test for involuntary manslaughter. The House of Lords dismissed his appeal and held that gross negligence is the correct test.

To be convicted of gross negligence manslaughter, a doctor must have breached a duty of care owed by them to the patient causing death and the breach of the standard of care must be 'so grossly negligent as to justify a criminal conviction'. The standard of care demanded of the doctor is the standard of the reasonably skilled and experienced doctor in the doctor's particular field of medicine. It is ultimately a question of fact for the jury to determine whether the standard of care provided was so badly negligent that it can properly be condemned as criminal.

In Dr Adomako's case, he failed to notice for over four minutes that the tube administering oxygen to the patient had become disconnected. One prosecution expert described his standard of care as abysmal and said that any competent anaesthetist should have recognised complete disconnection of the tube within 15 seconds. The jury found the standard of care fell so far below the standard of the competent anaesthetist they were persuaded Dr Adomako's conduct went beyond a civil breach of his duty of care and should attract the sanctions of the criminal law. He was accordingly convicted of gross negligence manslaughter.

In R v Prentice and R v Sullman (1993) two junior doctors were acquitted of manslaughter on appeal after they wrongly injected vincristine intrathecally into the patient's spine when the cytotoxic drug should have been administered intravenously. This resulted in the patient's death. It was held that the question for the jury to answer in relation to a charge of gross negligence manslaughter was whether, in the case of each doctor, the jury was sure that the failure to ascertain the correct mode of administering the drug was negligent to the point of criminality. The jury should be directed to have regard to all of the circumstances of the case. The case ultimately turned upon the fact there were many mitigating circumstances in the case and the jury found although the doctors had acted negligently, they had not acted grossly negligently.

In practice

Whether or not a jury will find a doctor's actions to be 'grossly' negligent as opposed to negligent is dependent on the individual facts and circumstances of a specific case and on whether the jury decides to attach sufficient weight to any mitigating factors put in evidence before them so as not to render the doctor's acts or omissions criminally liable. Although it is ultimately a matter for the jury whether or not an individual practitioner's acts or omissions are so culpable as to attract criminal liability, there are certain things doctors can do to minimise the risk of committing negligent acts that may or may not be deemed 'grossly' negligent.

As demonstrated by R v Prentice and R v Sullman, when delegating tasks to other doctors, the delegating doctor should always check that the individual is competent to a reasonable standard and communicate any tasks effectively. The delegating doctor in this case failed to check whether Dr Prentice was competent to give cytotoxic drugs intrathecally and the supervising doctor, Dr Sullman, thought that he was only there to supervise the use of the needle to make the lumbar puncture but had no responsibly over the administration of the cytotoxic drugs. Had there been clear communication between the delegating doctor, the supervising doctor and Dr Prentice, the negligent administration of vincristine would not have occurred, the patient would not have died and there would have been no charges of gross negligence manslaughter. The case also illustrates that delegated duties should not be accepted unless the doctor is confident of completing them to a reasonable standard.

Keeping accurate and detailed medical records is essential because this may be the only record or evidence that a jury or a police investigation has to support the doctor's version of events. Inadequate or muddled notes and lost records may lead to an inability to rebut the prosecution's case. Best practice is to ensure all clinical developments are noted together with investigations undertaken, action on results and notes on future management, referral and follow up in a patient's medical notes.

In order to reduce the risk of undertaking acts or omissions which a jury may find as being grossly negligent, medical practitioners should ensure they keep up to date with current medical practice within their own speciality and keep within the limits of their own expertise. Where there are standard protocols or guidelines for dealing with particular conditions and these guidelines are not followed, individuals must be prepared to justify their own management by reference to a responsible body of medical opinion.

Police investigations are traumatic, both for the relatives of the deceased and for the doctor concerned. It is, ultimately, for the CPS to decide whether or not to prosecute bearing in mind the prospects of securing a conviction and the public interest. The quality of the notes, the adherence to policies and the awareness of competency are factors which would weigh heavily in the CPS decision.

Practice points

  • Trusts should, so far as possible, be prepared to offer the individual doctor as much legal and professional support as possible. While, strictly, the allegations do not affect the Trust and may be characterised as matters on which the individual's defence organisation should assist, it would be preferable for the Trust to be involved with the investigations
  • A successful defence would be predicated on the clarity, accuracy and coherence of the original medical records
  • The process is likely to be protracted. Depending on the nature of the allegations, Trusts will need to reassure themselves that there are no adult or child protection issues raised by the allegations which would suggest the individual should not undertake front-line duties in the interim
  • It is unlikely the police or the CPS will have access to the same in depth understanding of medicine or hospital practice; by offering an understanding of local and national procedures, the Trust can seek to inform the nature and scope of the investigation

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.