Criminal prosecution for medical manslaughter

Introduction

Doctors like everybody else do make the occasional error. Sometimes these mistakes have disastrous consequences and somebody might even die. But when is an unintentional error so serious that a criminal offence has been committed?

Gross negligence is currently the legal threshold for medical manslaughter in English criminal law. Interpretation of ‘gross negligence’ is contentious and this does give rise to some uneasiness within the medical profession. However, it is not only the definition of ‘gross negligence’ which is problematic, the underlying intuitions about moral luck and personal control are controversial as well.

Judges and juries often face a difficult, if not impossible, task in medical manslaughter cases when deciding whether a criminal offence has been committed. One way to solve these problems would be to use a clearly-defined objective norm for personal failure as threshold, but this will imply a higher threshold for criminal prosecution.

Prosecutions for medical manslaughter

A review by Ferner and McDowell¹ showed that in England the number of doctors charged with manslaughter had increased dramatically since the 1990s. Quick² looked at medical manslaughter in general, not only manslaughter committed by doctors, and he also found an increase. In his study there was also some evidence for a regional variation (with more prosecutions in the north-west of England) and for racial differences (with more non-white people being prosecuted). Both Ferner and McDowell¹ and Quick² obtained their data via searching newspaper articles. It could be that there has been only an increase in reporting and not in prosecutions as such, but this seems unlikely.

The Crown Prosecution Service (CPS) might be somewhat more likely to prosecute than in the past. There is some evidence for this as an acquittal in medical manslaughter cases occurs more frequently than in ‘normal’ manslaughter trials. Given the recent increase there is the possibility that the legal concepts are not always interpreted in the same way.

Gross negligence

In England the legal criterion for manslaughter in the context of medical treatment is gross negligence as formulated in R v Adomako.³ There has to be a breach in the duty of care which is so serious that it constitutes a crime. This will depend on both the seriousness of the breach of duty (i.e. departure from the proper standard of care) and on all circumstances in which the defendant was placed when it occurred. The defendant's conduct must have fallen far below the standard of a reasonable practitioner. But how to judge this?

With many offences the circumstances are important in determining the sentence, but not in deciding whether somebody is guilty. With medical manslaughter it is different: the circumstances also determine whether somebody has committed the offence. In all likelihood prosecutors, juries and judges find it difficult to get a clear grasp of all the circumstances because they have no personal experience of working in hospitals, operating theatres, et cetera.

Quick² stated on the basis of interviews with members of staff at the CPS that in practice the CPS only tends to start a prosecution if there are two expert witnesses willing to state in court that it was gross negligence. Quick does not discuss how the CPS finds their expert witnesses, but they might well be selected from a very limited group of doctors who are known to the CPS. Quick mentions how experts sometimes change their views. Apparently, the concept of medical manslaughter is also difficult for experts, even though they know the circumstances.

Different types of error

Not all errors are the same and in some cases gross negligence is plausible. Ferner and McDowell¹ made a distinction between different types of errors: mistakes (i.e. errors in planning an action); slips (failures in execution an action often because of a momentary loss of concentration); technical errors; and violations (deliberate deviations from safe practices). There tends to be less controversy about the interpretation of gross negligence in case of violations. In a few of Ferner and McDowell's examples the person convicted had been intoxicated while making the error.

However, people have also been found guilty or pleaded guilty in cases of slips or mistakes. One of the examples is a doctor pleading guilty after a junior doctor he was supervising administered vincristine intrathecally and the patient died. An external inquiry into this event had identified many other contributory factors, but only this particular doctor was prosecuted.⁴

Competent and experienced doctors can make the occasional error and in practice errors happen quite frequently.⁵ Why and when should the CPS start prosecution? This is not just a question of how to interpret gross negligence. There are difficulties with underlying intuitions regarding punishment for errors which need clarification.

Moral luck

Medical negligence is not the only area of the law where there are difficulties with unintentional consequences of actions. The concept of moral luck⁶ is somewhat counterintuitive, but in cases of clear rule violations is generally accepted. An example will make this clear.

Suppose somebody is driving home after a party and his blood alcohol level is above the legal limit. It might well be that nothing happens, there is no accident and the person is not caught by the police. But suppose that this person has an accident. If he hits a tree and there is damage to his car, he is unlikely to get a prison sentence and will probably only get a fine and/or a driving ban. If he hits a child and the child dies, he will go to jail. Furthermore, thorough investigations to show whether the road was slippery and whether even a driver who had not been drinking alcohol could have had the same accident will not be done in general.

In all instances, the person was doing the same thing, driving under the influence of alcohol, and in all instances there was no intention to harm. The consequences of the driving under the influence of alcohol differed but were beyond the control of the person involved, and the person was either lucky or unlucky. Still, there is no debate about the rationale behind drink driving laws. Apparently it is generally accepted that one can do something wrong and that luck determines whether one gets (severely) punished or not at all.

The situation is more difficult if there is no alcohol use or other clear rule violation. Every driver has moments of lack of attention. Suppose somebody hits a tree while driving because he was not paying enough attention. It is unlikely that there will be a prosecution at all. Now suppose somebody kills a child who runs across the street and the driver does not manage to stop the car quickly enough; he was probably inattentive, but perhaps it was not possible to stop in time anyway. This is a situation where convictions are problematic. How can you prove that somebody could have stopped and that it was an error of criminal severity that he did not?

Generally, it is difficult to make a decision whether somebody made an error so serious that one should accept the consequences, including criminal conviction. This seems to be possible only, when there has been a clear objective rule violation (such as drinking alcohol before driving). Therefore, using the concept of ‘moral luck’ there are arguments for prosecuting only violations and no other errors.

Overestimation of personal control in case of a bad outcome

Prima facie it seems that humans decide on the basis of the facts whether somebody had control over a certain situation or not. However, experimental research shows that this is not always the case.

Knobe⁷ presented test participants with one of the following vignettes:

• Scenario 1: The vice president of a company went to the chairman of the board and said, ‘We are thinking of starting a new program. It will help us increase profits, but it will also harm the environment.’ The chairman of the board answered, ‘I don't care at all about harming the environment. I just want to make as much profit as I can. Let's start the new program.’ They started the new program. Sure enough, the environment was harmed.

or

• Scenario 2: The vice president of a company went to the chairman of the board and said, ‘We are thinking of starting a new program. It will help us increase profits, and it will also help the environment.’ The chairman of the board answered, ‘I don't care at all about helping the environment. I just want to make as much profit as I can. Let's start the new program.’ They started the new program. Sure enough, the environment was helped.

When presented with scenario 1, 85% of the subjects said that the vice president intentionally harmed the environment, and when presented with scenario 2, only 23% of the subjects said that the vice president intentionally helped the environment. Apparently, if the outcome is bad, subjects are more likely to say that the person had control over the situation. Although the scenarios used by Knobe⁷ are different from making an error, his study gives some evidence that people might well overestimate the influence somebody has had in preventing a bad outcome.

Experts, the CPS, judges and juries face an impossible task if they have to judge gross negligence in case of slips, technical errors and mistakes. It is not just knowing the circumstances, it is also estimating the amount of influence somebody had over the situation and this is quite difficult to do. There is an intuitive pull that, because somebody died, somebody must have committed a criminal offence, but this is not always justified.

Conclusion and possible alternative

The current concept of gross negligence is difficult to interpret and this is problematic, especially because there has been an increase in the number of prosecutions; there is also some evidence for regional variations and racial differences. However, the problems are not only with the definition of gross negligence but also with the underlying intuitions when prosecution is justified.

Regarding prosecuting medical errors, there are no major problems with prosecuting clinical negligence in cases of clear rule violations: behaviour which would be a criminal offence anyway or conscious departure from established guidelines. An example would be that somebody was drunk while making the error. Regional variations and racial differences can be acceptable in cases of clear rule violations because of the objective evidence.

However, in cases of mistakes, slips and technical errors the situation is different. Subjective recklessness has been proposed as criterion by Quick² and it is already recognized as a factor in determining gross negligence. However, subjective recklessness can be vague as well and can be influenced by psychological factors, such as described by Knobe's⁷ research. This makes regional variations and racial differences difficult to explain; it could well be based on a prejudice.

Prosecution in cases of unintentional errors when there has been no violation of the law or a conscious deviation of clinical guidelines should probably stop because it is impossible to judge whether somebody has done something so severely wrong that criminal conviction is justified. A person should also not be prosecuted if the rule violations have been forced upon him or her. If there is no criminal prosecution this does not mean that nothing is happening as health professionals can still have their fitness to practise assessed by their regulatory bodies, such as the GMC.

Footnotes

DECLARATIONS —

Competing interests None declared

Funding None

Ethical approval Not applicable

Guarantor DH

Contributorship DH is the sole contributor