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“Doctors in the Dock: Are the Courts moving towards assigning criminal liability to Health Professionals?”

Peacock Johnston Solicitors are perhaps uniquely placed in Scotland to comment on this developing area of law, with years of experience in medical law, and, in parallel, years of “day in, day out”, practice in the Scottish Criminal Courts.

Until recently, it was assumed that doctors would only be prosecuted for clinical actings which could almost be regarded as being truly “maverick”, “off-piste”, or worse.

Cases outwith Scotland:

It is easy to understand the conviction and sentence in England, in 2000, of the GP Dr Harold Shipman for murder, where the Jury were satisfied that there was evidence to prove an intention to murder 15 elderly female patients.

However in recent years there has been a continuing trend in England towards the prosecution of doctors in cases even although, (unlike Shipman), there may be no evidence of “evil” intention by the doctor deliberately to harm the patient.  This has been mirrored across the Atlantic by such high profile cases as the 2011 involuntary manslaughter conviction in California of Dr Conrad Wilson in relation to the death of Michael Jackson.

It is important to note however that even before the conviction of Dr Shipman in 2000, English Law recognised that, at common law, a doctor could be prosecuted for manslaughter arising as a result of “gross criminal negligence”.  In 1994, a Dr Adomako was convicted of manslaughter of a patient upon whom he had been operating and where he had failed to notice that the patient’s breathing tube had become dislodged.

Recent cases in England:

 In England, there has been an increasing number of high profile prosecutions of Health Professionals arising out of the care of patients.

In November 2013, Mr David Sellu, a Colorectal Surgeon, was sentenced to two and a half years for manslaughter, after the death of a patient, James Hughes, who developed a perforated bowel while recovering from a routine knee replacement operation. Following the knee operation, the patient was placed under the care of Mr Sellu. It was alleged that although Mr Sellu had suspected that there had been a rupture in the patient’s bowel, a potentially life threatening condition, he had ignored the urgency that the case demanded, and the patient later died. It is thought that the custodial sentence handed out Mr Sellu (a rare outcome in such a case) is reflective of the extent of culpability due to the doctor’s failure to act in such a serious situation. In sentencing, the Judge, Mr Justice Nicol stated that Mr Sellu was responsible for “several failures” which amounted to “gross negligence” and that accordingly the surgeon’s culpability was high.

In November 2015, Dr Hadiza Bawa-Garba, (an experienced Paediatrician) and Isabel Amaro, (an agency Nurse), were convicted of manslaughter by gross negligence by a Jury at Nottingham Crown Court. In this tragic case, Dr Bawa-Garba, was accused of medical failings leading to the death of Jack Adcock, a young child with Downs Syndrome. The child was admitted to Leicester Royal Infirmary on the morning of 18 February 2011 with severe vomiting, diarrhoea and breathing difficulties. It was alleged that Dr Bawa-Garba had mistaken the child for another patient she had treated that day marked “Do Not Resuscitate” (DNR) and that she had stopped life-saving treatment on the child. The treatment was only re-started when a junior doctor pointed out her mistake.

The ongoing trend of criminal prosecution of Health Professionals in England appears to be continuing. In a prosecution which concluded in January 2016, Dr Errol Cornish, a locum Consultant Anaesthetist, working at Tunbridge Wells Hospital was tried at London Crown Court for manslaughter, and eventually acquitted.  Dr Cornish was accused of having failed to ensure that a patient, Mrs Frances Cappucini’s airway was clear and that she was breathing properly.

Maidstone and Tunbridge Wells NHS Trust, Dr Cornish’s employers, were also tried for corporate manslaughter, the first charge of its kind relating to a Health Board. It is interesting to note that in this instance the prosecution of both the doctor and the Health Board were unsuccessful, with the Trial Judge Mr Justice Coulson, instructing the Jury acquit both defendants on the basis that they had no case to answer. The long term implications of this case, if any, on the wider landscape of prosecutions of health professionals and employers, may be too early to judge.

In England, prosecutions have not been confined to fatal cases.  On 18th January 2016, it was reported that a Mr Ian Paterson, Consultant Breast Surgeon, had appeared at Birmingham Magistrates Court charged with wounding with intent to cause harm in connection with various breast surgical procedures.  The English Courts (or at least the Crown Prosecution Service) appear to show a continuing shift towards trying to assign criminal liability to individual doctors.

The true impact of these criminal prosecutions on the wider medical and legal landscapes of the UK may yet to become apparent. However, the current tendency towards criminalisation of clinicians in England does appear to be strongly contrary to the Scottish Government’s stated aim of moving towards a “no blame” culture, in the practice of medicine. It would be interesting to observe whether the current trend in criminal prosecutions in England would lead to a rise in “defensive medicine”, whereby high risk procedures are avoided by clinicians both sides of the border. The practice of “defensive medicine” has always been historically linked to the rise in prosecutions/litigations in the United States, and only time will tell whether this controversial practice would be replicated within the NHS.

Scotland:

 So what is the position under Scottish law – could a conviction for manslaughter happen here?  Well, firstly, there is no such thing as “manslaughter” in Scotland – the equivalent offence would be culpable homicide.  No such case has yet come before the Scottish Courts involving the prosecution of a doctor, but it may only be a matter of time before this does happen.  We are aware of one case involving a Surgeon where the Crown actively considered whether to prosecute before deciding that there was insufficient evidence.  In theory, under Scots Law, a death resulting from culpable and reckless conduct may be charged as culpable homicide. However, no case with the requisite degree of seriousness has come before the Scots Courts.

Injury not leading to death:

 It is widely taught that the “treatment of a patient without consent is assault”. However, we consider that this is incorrect in Scots Criminal Law, as it is an essential component of assault in Scots Law that there should be either evil intention to injure or cause bodily harm or, at very least, reckless indifference as to the consequences of one’s actions (“mens rea”).  However, it is our view that in an exceptional case, it is conceivable that a charge of culpable and reckless conduct could be brought.

Liability of Employers: 

The shift towards criminalisation of certain aspects of healthcare has been accompanied by a trend of prosecutions of the employers of Healthcare Professionals, i.e. the NHS Health Boards. In a recent tragic case involving the suicide of a patient in a side room within an Accident and Emergency Department, (where Peacock Johnston represented the family of the deceased in a civil claim), the Health Board concerned was successfully prosecuted through the Criminal Courts for a breach of Health and Safety Regulations.  The Scottish prosecuting authorities seem much more minded to prosecute Health Authorities for breaches of Health and Safety legislation, than they are to prosecute Health Professionals individually.  Although some may feel that such an approach does not go far enough, it still marks a step change in the attitude of the Crown towards public bodies such as Health Boards, and it is considered likely that the Crown’s historically benign policy towards Health Professionals in Scotland may similarly start to change.

Corporate Manslaughter / Corporate Culpable Homicide:

Could a Health Board in Scotland be guilty of culpable homicide? Historically, In Scotland for a company to be found guilty of culpable homicide under common law, the identification of the actions of individuals who to all intents and purposes “are the company” had always been a pre-requisite. This “identification principle” has meant that it has always been difficult to prosecute large companies, as opposed to a smaller “one man band” organisation. The landmark case of Transco Plc v HMA (2005) S.L.T. 2111, related to the tragic death of a family of four in Larkhall, following an explosion of an eroded gas mains pipe at their home.  This was the first attempted prosecution of a corporation for culpable homicide in Scotland. Although Transco were ultimately convicted of several Health and Safety breaches, and fined £15 million, a prosecution was attempted, and failed, for alleged culpable homicide.  The charge of culpable homicide was not allowed to proceed as the Appeal Court held that as a legal entity, the company could not form the required criminal or “evil” intent. The Court of Session held that if a crime of culpable homicide by a company were to come into existence, then it was up to Parliament to legislate on the matter.

Partly as a result of this, new legislation was enacted in 2007.  The Corporate Manslaughter and Corporate Homicide Act 2007 introduced the new offence of Corporate Homicide.  Its implications on Health Boards require to be considered, The 2007 Act has UK wide application and under the terms of this Act, a Health Board may owe a “relevant duty of care” (subject to partial exemptions) in respect of medical treatment. This relevant duty of care excludes Triage decisions and decisions involving public policy and allocation of public resources. It follows that a “gross breach” of a relevant duty owed by a Health Board to a deceased, may constitute an offence of corporate homicide. A successful prosecution under the 2007 Act may be difficult, and would require the satisfaction of the following 3 elements;

1) A gross breach of the relevant duty of care.

2) The gross breach of relevant duty of care must fall below what could reasonably be expected of the organisation in the circumstances.

3) The gross breach of relevant duty of care which causes the death must be directly attributable to senior management failure.

Furthermore, in determining an offence under the 2007 Act, a Jury must consider whether, based on the evidence, a Health Board has failed to comply with any Health and Safety legislation that relates to the alleged breach. If so, it must consider the seriousness of this breach. Finally, a Jury would require to consider how much of risk of death, the breach posed.  It follows that the prosecution of a Health Board under the 2007 Act, although technically possible, is likely to be confined to circumstances of extremely serious Hospital mismanagement, leading to death. Thus far, we have yet to see an example of such a prosecution in Scotland.

Whilst there have been no prosecutions under the 2007 Act in Scotland, there have thus far been over 10 convictions in England, although none yet of a Health Authority. Considering that the 2007 Act has now been in force for almost a decade, this figure is low. However, it is of interest to note that in 2015 alone, there were 4 high profile convictions. The previous year saw Pyranha Mouldings Limited (£200,000 fine), Huntley Mount Engineering (£150,000 fine), Baldwins Crane Hire Limited (£700,000 fine), and CAV Aerospace Ltd (£125,000 fine) have significant fines imposed upon them. In the case of Huntley Mount Engineering, one of the directors of the company was also sentenced to serve an eight month prison sentence.

In England, there does appear to be at least some indication of the possibility of a successful prosecution of corporate entities within the healthcare sector albeit outwith the NHS. In February 2016, Sherwood Rise Limited, a company responsible for running a care home was successfully prosecuted for corporate manslaughter, following the death of a resident, Ivy Atkin (86), who was found to be dehydrated and malnourished, at the time of her death. The company was fined £300,000. Whilst this prosecution does not relate to a Hospital, it does appear to indicate that whilst successful future prosecutions of Health Boards for corporate manslaughter may be fraught with difficulty, it may not be altogether impossible to achieve a conviction.

Finally, no discussion of potential criminal liability of Health Professionals in Scotland would be complete without a mention of potential criminal liability with regard to assisted suicide. This is an issue that shall be discussed in greater detail in a further article.

By Andrew Pollock and Susith Dematagoda

For further enquiries please contact info@peacockjohnston.co.uk