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.

Case example

A general surgery ST6 specialist trainee working in a busy unit undertook a femoral hernia repair in a frail patient in his 80s. The case had been discussed with the trainee's supervising consultant, who was about to assist a colleague in a complex procedure in the adjacent theatre.

The operation apparently went well, but the supervising consultant was not able to inspect the repair before skin closure as he would normally have done, because the other procedure was at a critical stage and he was unable to leave.

Within 48 hours the patient's condition deteriorated markedly, with severe abdominal pain, fever and vomiting. Following investigations and review, the consultant decided the patient should have surgery for suspected small bowel obstruction. During the operation he found that the suture repair of the hernia had been inadequate, and that a small knuckle of gangrenous small bowel was strangulated in the hernia. He resected this successfully, but despite several days on HDU the patient died.

The patient's death was reported to the coroner, who in turn referred the matter to the police as there was a concern that the trainee may have been grossly negligent in their surgical repair.

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.