'Gross negligence ‘medical’ manslaughter in Ireland: Legal context and clinician concerns' by Mary-Elizabeth Tumelty and Eimear Spain in (2021) Medical Law International comments
In recent years, the prospect of the criminal prosecution of medical practitioners for patient safety incidents resulting in fatality which occur in the course of clinical practice has caused heightened anxiety among medical practitioners, particularly in England and Wales, where a number of high-profile cases have raised public consciousness of this issue. The full impact of this landscape on individual practitioners and the delivery of healthcare has yet to be ascertained, although research suggests that medical practice has been impacted. Of particular interest is the phenomenon of defensive medicine which occurs where physicians adopt assurance and/or avoidance behaviours in an attempt to minimise the risk of medical negligence litigation and/or to avoid complaints to regulatory bodies. While defensive medicine is traditionally conceived of in a civil context, the possibility of criminal prosecution for patient safety incidents resulting in fatality may also result in alterations to medical practice. Drawing on the findings of an empirical study (a survey), this research sought to explore the impact, if any, of the threat of criminal prosecution on surgical practice in the Republic of Ireland, including a potential rise in defensive practice.
The authors argue
In Ireland, redress for patient safety incidents resulting in harm is typically achieved through civil law remedies, that is, medical negligence litigation. Regulatory processes, such as complaints made to the Medical Council, are also a feature of the landscape. In contrast, criminal prosecution for patient safety incidents have been rare and prosecutions of medical practitioners for gross negligence manslaughter, relating to their professional roles, have to-date been non-existent. Recent events, such as the CervicalCheck controversy, resulting from a failure to and/or delay in disclosing the results of a retrospective audit to a group of women, who had developed cervical cancer, have increased the appetite for the accountability of the medical profession in Ireland. There has also been a criminal prosecution of a GP, Bernadette Scully, for gross negligence manslaughter in 2016, where it was alleged that the administration of an excessive quantity of sedative given during an epileptic seizure resulted in the death of her daughter . While Dr. Scully was acting in a private capacity when the incident occurred, this prosecution has raised the possibility of prosecution in the consciousness of the public and within the profession. Increases in prosecutions of this nature in England and Wales, are also significant given the close historic and cultural ties between the two jurisdictions and the similarities between the two legal systems. A factor which is poorly understood in this discourse is the lower legal standard which applies in gross negligence manslaughter cases in Ireland and which has the potential to lead to higher rates of conviction than in England and Wales, should the decision be made by prosecuting authorities to bring medical practitioners to trial for gross negligence manslaughter in Ireland.
The personal and professional impact on individual doctors practicing in an increasingly adversarial, high-risk environment, which includes the possibility of criminal sanction must not be underestimated. As Brazier and Cave note, ‘[t]he increasingly common demand that doctors be punished for tragic mistakes causes anxiety within the profession’. Recent developments in the United Kingdom, such as the high-profile prosecution of Dr Hadiza Bawa-Garba, a junior doctor who had recently returned from maternity leave, for the gross negligence manslaughter of a young boy who tragically died under her care following a misdiagnosis, has led to what has been described as ‘toxic fear’. Despite the systemic failures in this case including issues with the hospital computer system, staff shortages, and long-working hours, she was convicted in 2015, and subsequently erased from the medical register, leading to an outcry by the profession. While the sanction of erasure was subsequently reversed, the case had a far-reaching impact. The implications of operating in this environment are felt by patients, doctors and the healthcare system, leading to defensive practice whereby the decisions of healthcare professionals are coloured by the threat of legal and/or regulatory action. The literature on defensive medicine has to-date been limited in two ways: it has focused on the impact on the patient and the system, to the exclusion of the physician; and has explored the impact of civil legal actions and/or regulatory sanctions, rather than criminal prosecution. Defensive medicine, the practices which may be adopted by physicians as a means of mitigating against the threat of litigation, complaints, and/or criticism, arguably, could equally apply to measures taken to avoid criminal prosecution. While negligence litigation was traditionally viewed as the sole trigger for defensive practice, Case has described this view as ‘reductionist’ and notes that ‘[r]esearch into defensive practice in medicine has. . . re-contextualised such defensiveness as a multifactorial phenomenon with broader parameters’. The acknowledgement that defensive practice is engaged in for a myriad of factors including ‘for the purpose of protecting the doctor from criticism’ or ‘protection against possible accusations of negligence or under performance’ is welcome, yet acknowledgments of the impact of potential criminal prosecution in this context have been rare. As Quick surmises ‘whether the threat of criminal prosecution impacts on the behaviour of healthcare professionals, and if so in what ways, is not well understood’. However, it appears from anecdotal evidence that prosecutions of this nature are resulting in defensive practice. For example, the independent review on gross negligence manslaughter commissioned by the GMC in 2019 noted: ‘[w]e have heard repeated reference to doctors resorting to defensive medicine’.
This article seeks to explore the impact of the threat of criminal prosecution on surgical practice in Ireland, drawing on the findings of an empirical study. The literature and case law suggest that there is an international awareness of the impact of the threat of litigation, criticism, and/or complaints on surgical practice, specifically, the area of practice which is the focus in this study. Internationally, surgeons have been identified as a group who may be especially susceptible to defensive practices, due to the high-risk nature of surgery. Empirical insights into defensive practices both generally and in the context of surgical practice are non-existent in Ireland. In addition, despite the significant body of research that exists in this area, research on the impact of the threat of criminal prosecution on the practice of medicine is limited.
The first part of this paper critically examines the current legal framework as it relates to gross negligence manslaughter in Ireland, and discusses proposals for reform. The second part of this paper provides an overview of the methodological approach adopted in this study, and presents and explores the findings of this research. In doing so, the paper argues that an increase in prosecutions for gross negligence manslaughter has the potential to intensify defensive practice, and such a punitive approach to patient safety incidents which result in fatality will do little to cultivate a ‘just culture’ and achieve the overall important policy goal of patient safety.
'Death caused by negligent medical care: Reconsidering the role of gross negligence manslaughter in the aftermath of Bawa-Garba' by Ash Samanta and Jo Samanta in the same journal comments -
Gross negligence manslaughter is a well-established common law offence in English jurisdiction. Nevertheless, it remains a troubled area of law. Academic commentators, as well as the Law Commission, have frequently called for reform. We explore this offence through the prism of medical manslaughter and argue that the offence is insufficiently nuanced in certain situations of death caused by gross negligence. This applies particularly to complex professional circumstances where a coalescence of inter-linking factors may converge with disastrous results for the parties concerned. Using the clinical care model as an exemplar, we argue that relentless focus on the offender can result in a disproportionately high level of blame being foisted on an individual. On the basis of decision theory, we suggest that insufficient regard may be given to confounding contextual matters. Failure to address underlying systemic factors may impede wider patient safety initiatives such as professional medical candour and strategies designed for institutional improvements directed at broader societal benefit. We offer an alternative approach based upon principles of fair attribution of blame and transparency. A new statutory offence is suggested for a fault-based standard that is set by law that gives greater prominence to contextual matters. We argue for wider disposal options that include ancillary court orders for rectification of systems failures and more proactive engagement of the coronial process.
'Surgical harm, consent, and English criminal law: When should ‘bad-apple’ surgeons be prosecuted?' by Alexandra Mullock in (2021) 21(4) Medical Law International 343–368 comments -
This article examines the legal principles determining when surgical harm becomes a criminal matter. In England and Wales, and other common law jurisdictions, the criminal law has predominantly concerned itself with fatal medical misconduct via the offence of gross negligence manslaughter. The convictions of two surgeons in 2017 (Ian Paterson and Simon Bramhall), for offences against the person, suggests that police and prosecutors have, for the first time, become willing to prosecute surgeons for non-fatal surgical harm. Understanding when non-fatal surgical harm should be treated as a criminal matter is, however, a complex issue. The medical exception to the criminal law legitimizes consensual and reasonable surgical harm. Thus, the question of what is reasonable and what constitutes valid consent is key to determining the parameters of lawful surgery; however, the principles are perplexing and insofar as they may be agreed and understood, they are arguably unsatisfactory. After examining the cases involving serious surgical harm and analysing the doctrines applied, this article argues for a more patient-centred approach. The focus should be on the nature of the harm to the victim, the behaviour of the dangerous surgeon and whether a violation has occurred, rather than on traditional professional assessments, which are unduly deferential to the medical profession.
Mullock argues -
This article examines the uncertain principles concerning non-fatal surgical harm and the criminal law. In England and Wales, and other common law jurisdictions, the criminal law has predominantly concerned itself with fatal medical misconduct via the offence of gross negligence manslaughter (GNM). The ‘medical exception’ within criminal law creates a legitimate but uncertain space, allowing doctors to consensually harm patients for ‘reasonable’ surgical purposes. Thus, lawful surgery must be both consensual and reasonable. Without the medical exception, because surgery necessarily involves intentional wounding, it inevitably satisfies the requirements of section 20 of the Offences Against the Person Act 1861 (OAPA) and, if the wound is sufficiently serious to constitute grievous bodily harm (GBH), section 18 OAPA is potentially applicable. The convictions of two surgeons Paterson and Bramhall, in 2017, for offences against the person, suggests that police and prosecutors have become more willing to question the presumption that surgical harm is not a criminal matter. This article examines Paterson, Bramhall, other cases involving surgical malpractice and the legal principles determining when surgical harm might be regarded as a non-fatal offence.
This research contributes to the debate about the appropriate domain of the criminal law in medicine. While doctors have been convicted of sexual offences, the criminal law has not traditionally been used to capture other non-fatal medical harm-doing. The seminal work of Glanville Williams urged us to trust in the medical profession’s ability to self-regulate and not look to the criminal law when things go wrong, unless serious problems demand the concern of Parliament:
It may be questioned whether the criminal law has any place in controlling operations performed by qualified practitioners upon adults of sound mind with their consent, whether for reasons of therapy, charity or experiment. Controls exercised by the medical profession itself should be accepted as sufficient.
Paterson and Bramhall suggest that the criminal law does have a role to play when surgeons abuse trust and harm patients, but understanding when non-fatal surgical harm should be treated as a criminal matter is a complex issue. The question of what is reasonable and what constitutes consent are key to determining the parameters of lawful surgery; however, the principles are perplexing and insofar as they may be agreed and understood, they are arguably unsatisfactory. By examining these principles, I consider the challenges of determining whether and when harmful surgical injuries should be treated as a criminal rather than a civil matter. Ian Paterson’s crimes – mutilating many patients over more than a decade – provides an extreme example of criminal conduct, usually however, ‘bad-apple’ surgeons who recklessly inflict serious harm are subjected only to the scrutiny and accountability available via civil law and regulatory, disciplinary measures.
In the first section, I examine the problem of harmful surgery perpetrated by ‘bad-apple’ surgeons (Paterson, Bramhall, and others) and how contextual challenges when applying the criminal law to a medical setting make it difficult to capture surgical crime. The second section explores the principles of consent and the uncertainty over what constitutes reasonable – and thus unlawful – surgery. My analysis reveals that while we can be sure that lying to patients about a procedure is a criminal wrong, the threshold for sufficient information for valid consent is uncertain and seemingly inadequate to protect patient interests. Similarly, it is far from clear what the threshold for ‘reasonable’ and thus lawful surgery is. The next section draws from Feinberg’s work on consent and the relationship between being harmed and being wronged in order to present an argument for requiring more than minimal honesty for lawful consent. Finally, I argue that a clearer, less professionally driven concept of ‘reasonable surgery’ within the criminal law should be established. These arguments point towards the need for a more patient-centred approach, which recognizes the serious harm that can be inflicted under the guise of legitimate surgery as a criminal wrong. The focus should be on the nature of the harm to the victim, the behaviour of the bad-apple surgeon and whether a violation has occurred, rather than on traditional professional standards, which are unduly deferential to the medical profession.
