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When medical treatment becomes a crime
A recent case highlighted the rare circumstances in which a doctor can be convicted of gross negligence manslaughter. Majid Hassan, Joanna Bower and Ed Mellor consider the criteria needed to establish this offence.
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Facts of Bawa-Garba
In R v Bawa-Garba [2015] the deceased, a child with Down’s Syndrome and a heart condition, had been suffering from diarrhoea and vomiting. Dr Bawa-Garba omitted to identify deterioration to sepsis, overlooked important blood test results confirming the gravity of his condition, and mistook the patient for another, who had a “do not resuscitate” order. She ordered the cessation of CPR for approximately 1 minute. The Jury returned a majority 10-2 verdict in favour of a conviction of gross negligence manslaughter.
Gross Negligence Manslaughter
The Crown Prosecution Service define gross negligence manslaughter as a death which is “a result of a grossly negligent (though otherwise lawful) act or omission…”. It is an involuntary form of manslaughter where the defendant is ostensibly acting lawfully and causes death but did not intend to and thus lacks the "mens rea" for murder.
The criteria was defined in R v Adomako [1994] where an anaesthetist, during an eye operation, failed to notice that the ventilator tube supplying oxygen became disconnected for some six minutes, and the patient suffered a cardiac arrest and died. The House of Lords laid down a 4-stage test for a jury to determine gross negligence manslaughter: (1) the existence of a duty of care; (2) breach of that duty of care; (3) causing or significantly contributing to the death; (4) which should be characterised as gross negligence, and is therefore a crime. The jury must have regard to the seriousness of the breach and the extent to which the doctor departed from proper conduct. In Rowley v DPP [2003] Kennedy LJ alluded to a fifth ingredient: "criminality" or "badness" i.e the jury must be sure that the conduct was so bad in all the circumstances to amount "to a criminal act or omission". In R v Misra and Srivastava [2005], use by the Judge of the term “reprehensible” when describing the conduct was sufficient.
Health regulators’ position
There is no definitive approach where a doctor is charged with a criminal offence. Having been charged, an interim orders panel of the General Medical Council (GMC) suspended Dr Bawa-Garba. Following the incident she had worked, without complaint, with no patient contact for almost two years. The suspension was overturned by the High Court on appeal who held that even a serious criminal charge did not always mean that suspension was necessary or appropriate in considering risk to the public, and confidence in the profession. Contrast this with Dastagir v GMC [2015], where the doctor was charged with blackmail for threatening to send naked photographs of an ex-girlfriend to her family and friends unless she paid him £70,000. Conditions were not deemed sufficient notwithstanding that the doctor posed no threat to patient safety. The Court acknowledged that it is rare for suspension to be made solely on the grounds of public interest, but this was one of those rare cases of potentially serious damage to public confidence in the profession if the doctor was permitted to practise pending trial, even though he might be acquitted.
Key points
- Gross negligence manslaughter requires the conduct to be so bad that, in the opinion of a jury, taking all the circumstances into account, it does not merely call for compensation but criminal punishment.
- The GMC will consider suspension depending on the circumstances of the individual case but a serious criminal charge does not always mean suspension.
- There are separate crimes of:
– Ill treatment and wilful neglect (introduced under the Criminal Justice and Courts Act 2015), which can be brought against an individual or a healthcare provider, and does not require a causative outcome; and
– Corporate manslaughter which can be brought against a healthcare provider.
Majid Hassan is a partner, Joanna Bower is an associate and Ed Mellor is a lawyer at Capsticks. Majid can be contacted on 020 8780 4876 or
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