The MDU works constantly on its members' behalf to address the wider issues affecting doctors' working lives. So when the Sentencing Council consulted on sentencing guidelines for manslaughter in the summer of 2017, we felt it was important to add our voice - and the voice of our members - to the discussion.

The needs of healthcare professionals and the circumstances surrounding their gross negligence are distinct from those of other professions that might be affected by changes to the way manslaughter sentencing is considered. It's therefore vital that our members were represented, as Dr Michael Devlin explains below.

You can read more about our efforts to influence policy and legislative decisions relating to the medico-legal climate on the 'Our impact' pages of our website.

The death of a patient is very often a distressing experience both for the deceased's relatives and the doctors treating them, particularly when it is unexpected. On occasion, and from a medico-legal point of view, a doctor may face some form of investigation, including criminal investigation, coroner's inquest, complaint, civil claim, together with media intrusion. But casting the longest shadow over a doctor's professional life is a potential conviction for gross negligence manslaughter.

Medicine has an almost unique place in the professions because of the risk a patient might die from either lack of the right treatment, or receiving the wrong treatment. Sometimes the death of the patient can be attributed to the negligent act of the doctor. That means that the doctor's conduct was not capable of being supported by a responsible body of medical opinion from their speciality1, and that the negligent act or omission caused the death.

A proportion of deaths following medical treatment are investigated by the police and a smaller number still are prosecuted. Where there is a Crown Court trial, it then becomes a matter for the jury to decide in all the circumstances whether the negligence was so gross as to amount to a crime2.

Juries determine guilt, but judges decide on an appropriate sentence. But what is appropriate for gross negligence manslaughter involving healthcare workers? Since 2012 the law has been clear that doctors convicted of gross negligence manslaughter in the course of treating a patient have no special exception in terms of sentencing, and a term of imprisonment of two years is a starting point3.

Therefore, when the Sentencing Council consulted on sentencing guidelines for manslaughter in July 2017, which could potentially increase the severity of sentences, senior MDU solicitor, Ian Barker, provided detailed and robust comments. Some of the key points that Mr Barker made are detailed below.

  • The context is important. As of 2015, it was understood that 96% of gross negligence manslaughter (GNM) cases investigated (relating to healthcare professionals) do not result in prosecution; of those that do, approximately one third result in convictions4. Investigations can last for 18 months or more, and for some doctors de-skilling means they may not be able to work or have to retrain. Plainly there is no need for any greater deterrent by increasing the severity of sentences for GNM.
  • Despite frequent comparisons being drawn between airline pilots and doctors, in truth their responsibilities are poles apart. Faced with inadequate crew numbers, for example, a pilot may simply decide not to fly. A doctor working in a short-staffed environment cannot just shut-up-shop, but must do the best they can despite the circumstances.
  • The draft guidelines (being consulted on) introduced a danger that for doctors a 'low culpability' case could be artificially elevated to 'medium culpability'. The effect of this could be potentially to double the starting point of the sentence for GNM, and with an aggravating factor5 could result in an upper range of six or seven years; three or more times the current starting point.
What is culpability?

Culpability refers to whether a person may be held responsible, or blameworthy, for their acts or omissions to the extent that it attracts a criminal sanction. Courts will assess a variety of factors in determining culpability. In its consultation, the Sentencing Council identifies the following factors that may be taken account of in GNM:

  • consideration of the act or omission causing the death
  • the role played by the offender
  • the extent to which the offender was aware of the risk of death
  • the length of time over which the negligent conduct persisted
  • actions after the event
  • the circumstances of the offender.

The draft guidelines emphasise that in assessing culpability, courts should not take an overly rigid approach. Higher culpability factors include, for example, persisting with negligent conduct in the face of the obvious suffering of the deceased or where the negligent conduct was motivated by financial gain.

In contrast, lower culpability factors include the offender not appreciating the risk of death arising from their negligent conduct, or where their conduct was a lapse in an otherwise satisfactory standard of care.

Medium culpability will lie somewhere between, where either there are higher and lower factors that balance each other out, or where the level of culpability lies between that described for higher and lower.

In our response to the consultation we commented that medical treatment might have to be administered in the best interests of the patient even where it might cause suffering.

We also commented that doctors will commonly face circumstances where the patient is at a risk of death and the doctor will be aware of it. This should not in all circumstances be taken as suggesting a greater degree of culpability.

The MDU's submission was summarised clearly and eloquently by Mr Barker:

'It might be argued by others that, by virtue of their position, doctors are in a different position. Our answer to that is they are. In addition to the law, they are subject to a professional duty to do no harm to patients.

'Increasing the severity of a sentence for GNM will be no greater deterrent in terms of reinforcing doctors' duties to their patients. It may, however, increase any fear or doubt they have when making difficult decisions about patients when they are in a very difficult position yet are trying to act in a patient's best interests.

'It seems to us a retrograde step to contemplate increasing the burden on doctors at such times, and puts at risk the necessary open environment which enables learning from error and consequent increased patient safety.'

We hope that the Sentencing Council will recognise that doctors are in a unique position, and that the manslaughter sentencing guidelines will reflect the need to take account of their special circumstances.

FOOTNOTES

  1. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
  2. R v Adomako [1995] 1 AC 171
  3. R v Garg [2012] EWCA Crim 2520 (applying the provisions of the Criminal Justice Act 2003 s. 143(1) and schedule 21).
  4. The MDU's expert in-house legal team, led by Ian Barker, achieve a better outcome on average for members, with only 25% being convicted.
  5. A suggested aggravating factor is: 'The duty of care arose from a close or familial relationship where the deceased was dependent on the offender', which could, arguably, automatically apply to all cases involving doctors.

This article was correct at publication on 20/12/2017. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

Dr Michael Devlin

Head of professional standards and liaison

Mike was an MDU medico-legal adviser for 15 years, latterly as head of medico-legal services, before taking up the new role of head of professional standards and liaison. He sat on the FFLM’s academic committee and was previously treasurer, and an examiner for the MFFLM. He has published widely on medico-legal matters, and has significant experience in teaching and assessing knowledge in medico-legal subjects.

See more by Dr Michael Devlin