For most of us crime exists in newspaper reports or is dramatised for TV and cinema. It is so far removed from the ethical principles that govern clinical practice that it's easy to think, 'it will never happen to me'. But sadly it could, and it's important to understand how criminal liability could arise in clinical practice.

Doctors can be subject to a range of criminal investigations, but here we'll focus on gross negligence manslaughter in a healthcare setting.

The case study above may come as a shock to some doctors. It seems clear that the trainee surgeon made an error, but was that enough to reach a point where the conduct was criminal? When does an accident become manslaughter?

Principles of law

Manslaughter is categorised as either voluntary or involuntary. The former applies to crimes that would normally be prosecuted as murder (where there is an intent to kill or cause grievous bodily harm) but which are reduced to manslaughter because of loss of control, diminished responsibility or where it arises through a suicide pact.

Involuntary manslaughter may arise as a result of an unlawful act or gross negligence. Deaths in circumstances such as the fictional case above may give rise to the suspicion that they are caused by a category of involuntary manslaughter known as manslaughter by gross negligence. The starting point will be whether the ordinary principles of the law of negligence are met:

a) was a duty of care owed to the patient? In medical and surgical cases this is rarely if ever an issue; the professional relationship between doctor and patient creates such a duty.

b) was there a breach in that duty of care, or could the doctor's conduct be supported by a responsible body of medical opinion who had relevant skills and experience?

c) did the breach of duty involve a risk of death or serious injury which was the cause (or materially contributed to) the patient's death?

Where these principles are met, the next question is whether the breach of duty should be characterised as gross negligence, and it is for a jury to decide if an act or omission was so bad as to amount to a crime.

To help jurors understand what the law requires in order to convict someone for gross negligence manslaughter, trial judges give them directions. Some directions to juries have emphasised that mere mistakes, even serious ones, are not sufficient for the crime of manslaughter to be committed. The conduct must fall so far below the standard expected of doctors that it is truly, exceptionally bad in order to make it a criminal act or omission.

There is a caveat, however. Although directions have been helpful and appropriate in a number of cases, there is no strict requirement a judge should direct in those terms, and on occasion that does not happen.

Reducing the risks

A key question from practising clinicians is likely to be how they can treat their patients safely and reduce the risk of facing a criminal investigation and trial. In order to answer this, it may be helpful to think of two distinct areas: personal factors and organisational factors. And if the worst happens and something goes wrong, to understand how the criminal procedure works.

Personal factors

• Always work within your capabilities. If you're not sure about something you are about to do, seek advice or supervision.
• Know your weaknesses. For example, if you habitually work late to keep on top of things, think about how this could affect your ability to practise safely.
• Think about patient safety in your CPD planning. Some of the mistakes that lead to prosecutions have happened before, and raising your personal awareness of them will have obvious benefits, so seek out courses and conferences relevant to your specialty.
• Embed patient safety initiatives in your practice, and encourage colleagues to follow suit.     

Organisational factors

• Speak up. Flag up systems or practices you believe are unsafe. If there aren't enough resources to provide a safe and effective service to patients, tell your senior manager and follow up discussions to ensure there is progress. Flagging up inadequate resources or poor system design or delivery is often more effective when done collectively and collaboratively with colleagues.
• Understand and follow any local procedures that are part of the clinical governance framework.
• Make sure there is clarity about multi-disciplinary team meetings – which patients need to be discussed and who needs to be there. Check that discussions are accurately documented so that treatment options can be fully discussed with patients and potential risks identified.
• Ensure that you take part in any induction training organised for you, and that you make sure any staff for whom you're responsible also attend.

Procedural factors

• If something goes wrong, seek advice from your medical defence organisation right at the outset (and make sure you keep your membership up to date).
• Don't try to produce a statement without the notes or advice from your medical defence organisation or a solicitor instructed by them.
• Never make the mistake of thinking that the police won't know the subject matter. Any interviews will likely be conducted by skilled officers.
• Be ready to seek and follow your solicitor's advice. It is your right to consult your solicitor and it does not make you look guilty if you do.