Hospital Dr News

English law on gross negligence manslaughter in healthcare should follow Scottish law

The law that is applied in gross negligence manslaughter cases in healthcare should move towards Scotland’s comparable offence of Culpable Homicide, where charges are only brought against doctors if an act is proved to be intentional, reckless or grossly careless.

This is the conclusion of the Medical Protection Society in its response to Professor Sir Norman Williams’ review into gross negligence manslaughter in healthcare.

MPS said the legal bar for conviction in England and Wales – which does not require intent or recklessness or a public interest test – is too low and is resulting in good doctors being criminalised for unintentional and often system-wide mistakes that are devastating for all involved.

It said the law and its application in Scotland – which has seen one attempted prosecution resulting in acquittal – is better suited to determining the culpability of a doctor in a patient death and whether a prosecution is in the public interest.

MPS urged a bold approach when considering law reform, shifting it more into line with the legal test for Culpable Homicide in Scotland.

It says there should be a requirement on the Director of Public Prosecution to authorise all gross negligence manslaughter prosecutions involving healthcare professionals.

Dr Rob Hendry, Medical Director at the Medical Protection Society, said: “The public and medical profession would expect that extreme cases where there is intent to cause harm or a high degree of recklessness result in prosecution – and we support that.

“Most medical manslaughter cases are however more complex, involve systems failures, and are devastating for all concerned. Dr Bawa-Garba’s conviction is a case in point, and the strength of feeling on this and its implications for an open, learning culture in healthcare, has been palpable.

“A striking feature of the law in England and Wales is that intent, carelessness, or recklessness is not required for a conviction. The legal bar is too low and it is hard to see who benefits – a family has lost a loved one through tragic circumstances, a doctor may lose their career and face a prison sentence, the NHS has lost a valuable doctor, and fear of personal recrimination becomes increasingly embedded across healthcare.

“Opportunities to reform the law surrounding medical manslaughter have not been seized. We recommend the law is moved more into line with the legal test for Culpable Homicide in Scotland, which requires an act to be intentional, reckless or grossly careless.”

To contribute to the review email [email protected]

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