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New approach needed in England to gross negligent manslaughter

Since the decision was made to permanently erase Dr Bawa-Garba from the medical register, significant concerns have been raised over the criminal prosecution of healthcare professionals for gross negligent manslaughter (GNM).

Last week, the Medical Protection Society (MPS) proposed that the legislation in England and Wales be replaced with something similar to the Scottish system, which it believes better determines the accountability of a doctor in a patient’s death. In Scotland, there is no law of GNM. The nearest equivalent is involuntary culpable homicide, where the intent to commit murder is not present but either there is a wicked recklessness or gross carelessness that resulted in death. In English law, there is no requirement to prove that a defendant intended to cause harm or had any form of criminal intent.

We must not ignore the tragic death of Jack Adcock, but need to recognise that the criminalisation of Dr Bawa-Garba has led to patient safety potentially being harmed by overly defensive pratices and the loss of trust between the medical profession and its own defence organisation. The MPS proposal is to be commended as a possible solution.

However, from a patient’s perspective, there will be concerns that there has not been a single successful prosecution against a doctor under the law of culpable homicide in Scotland. To some, this indicates that the Scottish approach is too lenient.

We must also accept that good doctors can make mistakes, particularly in a health system that is far from being without fault. A distinction needs to be drawn between treatment in those circumstances, and where a doctor intentionally or repeatedly treats a patient in a negligent manner. Past scandals, such as Harold Shipman and Ian Patterson, would still have been dealt with under alternate criminal laws without the need to rely upon GNM.

In the context of a single, innocent mistake where the intention was to do no harm, is it in society’s interest to imbue those actions with the hue of a criminal? Or is it preferable to have a starting point where we assume that a doctor’s motivation is benign and work down from there?

The forthcoming rapid review by Professor Nicholas Williams into the way these incidents are dealt with should consider whether there needs to be a softening of the law in England and Wales to align more closely with the Scottish system.

Any system must ensure that grossly negligent actions are punished, but that due consideration to the motivation and intent behind the act is given. It is not in society’s interests to criminalise the medical profession unnecessarily, as this will only serve to undermine it’s position and encourage a loss of faith.”

www.fletcherssolicitors.co.uk

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