JAP 2011: 5: 160-165.
Introduction
Doctors have a duty to patients and the profession to ensure that their practice is up to date; and that they apply their knowledge and practical skills in the best interests of patients. They also have wider role in the allocation of resources, and in maintaining the integrity of clinical services1-2. The key paragraphs from the General Medical council with regards to these responsibilities is shown in Boxes 1 and 2.
There are many sanctions that a doctor can face should they fail to meet these obligations. Locally, the employer could subject them to internal disciplinary action which may result in a warning, or termination of employment. If appropriate, the case could be referred to the GMC, where, if found to have performed seriously below the standard of a competent practitioner, they could receive a Warning (which stays on the record for five years), restrictions on registration, or be erased from the Register.
Box 1. GMC guidance Good Medical Practice GMC 2006
http://www.gmc-uk.org/guidance/good_medical_practice.asp
6. If you have good reason to think that patient safety is or may be seriously compromised by inadequate premises, equipment or other resources, policies or systems, you should put the matter right if that is possible. In all other cases you should draw the matter to the attention of your employing or contracting body
17. You must make sure that all the staff for whom you are responsible, including locums and students, are properly supervised
43. You must protect patients from risk of harm posed by another colleague’s conduct, performance or health
48 You must be satisfied that when you are off duty suitable arrangements have been made for your patient’s medical care
54: Delegation involves asking a colleague to provide treatment or care on your behalf. Although you will not be accountable for the decisions and actions of those to whom you delegate, you will still be responsible for the overall management of the patient, and accountable for your decision to delegate. When you delegate care or treatment you must be satisfied that the person to whom you delegate has the qualifications, experience, knowledge and skills to provide the care or treatment involved
Regulator
Negligence is a clear legal concept which involves a chain of causation. The chain must establish that there was a duty of care, a breach of that care, and that “harm” resulted from that breach3. The whole chain of causation has to be intact for the doctor to be found negligent , and for appropriate damages to be awarded. However, it is possible that a doctor could have been proven responsible for a negligent act following due legal process, but that this negligence was not sufficient for the professional regulator to take disciplinary action, as outlined in the case Calhaem vs the GMC (2007)4. This ruling suggested that a single episode of negligence may not in itself be enough in itself to establish that the doctor’s fitness to practise is impaired, unless it was sufficiently serious in itself. The Judge stated:
“…. Mere negligence does not constitute “misconduct” within the meaning of section 35C(2)(a) of the Medical Act 1983. ….depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to “misconduct”…..A single negligent act or omission is less likely to cross the threshold of “misconduct” than multiple acts or omissions……a single negligent act or omission, if particularly grave, could be characterised as “misconduct”…”
In addition, Cohen v the GMC 20085 suggested that although the doctor’s fitness to practise may have been impaired when a serious error occurred, the passage of time may have allowed the doctor to take action to correct the deficiencies in his or her practice, to the degree that their practice may not be judged to be currently impaired.
Therefore, a doctor could admit negligence during a civil case, but may not be subject to erasure from the register, or restrictions on their practice by the GMC. However, a doctor guilty of a series of errors, or who has been found to have been severely negligent is much more likely to face action on their registration
The Definition of Manslaughter
The standards established for proving manslaughter are defined within the Homicide Act 19576.
Crudely, “manslaughter” is a legal term implying the unplanned, or unintentional, killing of a human being. The level of culpability that needs to be proven is less than that needed to prove murder, and generally depends upon the mens rea of the accused (ie the state of mind).
Box 2. GMC guidance “Management for Doctors” 2006
http://www.gmc-uk.org/guidance/ethical_guidance/management_for_doctors.asp
4. You continue to have a duty of care for the safety and well-being of patients when you work as a manager. You remain accountable to the GMC for your decisions and actions even when a non-doctor could perform your management role
10. All practising doctors use resources and play a role in setting priorities, developing policies and making other management decisions. All doctors have an obligation therefore to work with both medical and non-medical managers in a productive way for the benefit of patients and the public
12. It is not possible to set out all the roles doctors take on as managers. If your role involves responsibilities covered in this booklet, you should do your best to make sure that:
- systems are in place to enable high quality medical services to be provided
- care is provided and supervised only by staff who have the appropriate skills (including communication skills), experience, training and qualifications
- significant risks to patients, staff and the health of the wider community are identified, assessed and addressed to minimise risk, and that they are reported in line with local and national procedures
- systems are in place to identify the educational and training needs of students and staff, including locums, so that the best use is made of the time and resources available for keeping knowledge and skills up to date
- all decisions, working practices and the working environment are lawful, with particular regard to the law on employment, equal opportunities and health and safety
- information and policies on clinical effectiveness and clinical governance 6 are publicised and implemented effectively.
14. You should make sure that the people you manage have appropriate supervision, whether through close personal supervision (for junior doctors, for example) or through a managed system with clear reporting structures.
22. At times you may not have the resources to provide the best treatment or care that all your patients need. At such times your decisions should be based on sound research information on efficiency and efficacy, and in line with your duties to protect life and health, to respect patients’ autonomy and to treat justly
The term “medical manslaughter” is used to refer to a death which results from a medical error during the course of treatment.
Key “clinical manslaughter” cases are summarised in Box 3.
Box 3: Key cases in medical manslaughter7, 9
R v Bateman (1925 19 Cr App R 8)
Dr Bateman was a General Practitioner who attended a home delivery. Whilst removing the placenta, he inadvertently removed part of the uterus, but did not realise this immediately. The patient continued to bleed, but was not referred to hospital for a week. The patient died, and Bateman was tried for manslaughter. He was found guilty, on the grounds that had he acted sooner the patient would not have died. He had owed the patient a duty of care, had breached that duty, and as a result of the breach the patient had died
Bateman appealed and the conviction was quashed on the grounds that even if he had breached his duty of care to the patient, the breach in itself was not sufficient on its own to cause the death of the patient
R v Adomako [ 1995 ] 1 AC 171
Dr Adomoko was an anaesthetist who took over a case from a colleague. The endotracheal tube became disconnected, but he failed to detect the hypoxia until the patient arrested and died. He was found guilty of manslaughter on the grounds of “reckless negligence” to such a degree, that it became a criminal act
R v Bateman (1925) seems to be the first modern case in which the terms of “medical manslaughter” were established.
The initial conviction was heavily criticised as it appeared to rely on the evidence of an expert who strayed outside of his field of expertise7-8.
Research has shown that the number of “medical manslaughter” cases has increased steadily over the years. Only fourdoctors were charged with manslaughter in relation to their clinical work in the 70’s and 80’s, but 17 were charged during the 1990’s. Ten of these were eventually convicted, but the majority were successful in having their convictions quashed on appeal. Six were charged between 2000 and 2002, but only one of these was found guilty. In contrast, in 2001 only 40 of 278 defendants charged with non-medical manslaughter were acquitted.
It is much harder to prove medical manslaughter because it must be shown that it is the breach of duty of care that is directly and solely responsible for the death of the patient.
Although there has been an increasing trend over the last few years for medical staff to be charged with manslaughter when a patient has died, it is still a relatively unusual event. It usually relates to a loss of life in what are perceived to be preventable circumstances that must therefore have been someone’s fault. This may reflect the seriousness of the consequences rather than the magnitude of any series of errors that led to the tragic outcome; or perceived dissatisfaction with regulatory disciplinary measures for dealing with such matters10-11.
Box 4 outlines some recent well publicised medical manslaughter cases.
Box 4. Some recent manslaughter cases
R v Misra and Srivasta [2004] EWCA Crim 2375
R v Misra & Srivastava [2005] 1 Cr App R 328 Court of Appeal
The victim had undergone elective patella tendon surgery and developed a post operative infection. The two junior doctors involved both failed over a serious of time to recognise that the patient was developing a serious illness, and both failed to obtain senior advice. The patient died from septic shock
The doctors appealed but the conviction was upheld12, 13.
Wrong site operation
A patient died after two surgeons removed the wrong kidney during an operation. Subsequently charged with manslaughter, the prosecution was halted when the actual cause of the patient’s death could not be determined14.
NG tube misplacement
A doctor and two nurses were charged with manslaughter after an elderly ITU patient was fed down a misplaced naso-gastric tube and died. The case was abandoned before trial15.
Corporate Manslaughter
Doctors in management positions within the NHS may find themselves charged with corporate manslaughter. The legal position with regards to manslaughter in relation to an employer’s negligence is defined in the Corporate Manlaughter and Corporate Homicide Act 200728 OPSI 200716. Under the Act, the offence is defined as one in which an organisation and its officials have managed or organised activities which result in the death of a person due to a breach of a duty of care. The Act makes it clear that the organisation owes a duty of care both to its employees and members of the public. Relevant wording from the act is shown in Box 5.
Box 5. Relevent sections of the Corporate Manslaughter and Corporate Homicide act 2007
(1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised-
(a) causes a person’s death, and
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
4 (b) a breach of a duty of care by an organisation is a “gross” breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances;
(c) “senior management”, in relation to an organisation, means the persons who play significant roles in-
(i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or
(ii) the actual managing or organising of the whole or a substantial part of those activities.
Meaning of “relevant duty of care”
(1) A “relevant duty of care”, in relation to an organisation, means any of the following duties owed by it under the law of negligence—
(a) a duty owed to its employees or to other persons working for the organisation or performing services for it;
(b) a duty owed as occupier of premises;
(c) a duty owed in connection with—
(i) the supply by the organisation of goods or services (whether for consideration or not),
(ii) the carrying on by the organisation of any construction or maintenance operations,
(iii) the carrying on by the organisation of any other activity on a commercial basis, or
(iv) the use or keeping by the organisation of any plant, vehicle or other thing;
(d) a duty owed to a person who, by reason of being a person within subsection (2), is someone for whose safety the organisation is responsible.
To date there have not been many successful corporate manslaughter prosecutions in the UK, but those that have succeeded have been brought against smaller companies with a relatively “hands on” management structure17. The common themes from these cases have all been that either staff were permitted to perform tasks without adequate training, equipment or safety precautions; or that staff were permitted to work excessive hours. Many of the cases involve employees who fell from a height, or whom were killed by unsecured or unsafe equipment. Several relate to the deaths of trawler crews. Some relate to deaths of members of the public due to tired haulage drivers. Further details can be obtained from the website of the Centre for Corporate Accountability18. Sentences included fines and/or imprisonment.
Corporate manslaughter applies to the deaths of all of those to whom the organisation has a duty of care. In the case of an NHS Trust this would be staff, patients and members of the public. A Medical Manager could therefore be named in a Corporate Manslaughter prosecution if they were felt to be responsible for poor working conditions that contributed to a preventable death of anyone in relation to their services or facilities. Specifically, Medical Directors are part of the Trust Board, and share vicarious liability with the other members of that body, and could be held responsible in law (as well as by the GMC) for decisions made by that body to which they agreed. Clinical Directors, or other heads of departments, could be held responsible for the poor managerial processes within their departments should a death result.
The Medical Manager’s Dilemma
If poor administrative processes for which the doctor was wholly or partially responsible caused a death, it is possible that a manslaughter charge could result. This could apply equally the death of a patient due to the actions of a doctor who was permitted to become fatigued due to working long hours; or the death of a fatigued doctor who was permitted to work excessive hours (eg in a car accident on the way home). The main law that applies here is of course the European Working Time Directive19. It is therefore important that medical managers should apply the job planning and other managerial tools at their disposal to ensure that the EWTD is fully complied with.
However, a Medical manager must also ensure the integrity of their service, and the safety of the staff providing that service. Whilst the EWTD is a key consideration in this regard, the manner in which the EWTD has been implemented has been questioned. A recent Coroner inquest concluded that the poor level of medical cover out of hours, caused by the local implementation of shifts that satisfied the EWTD without making appropriate cover arrangements, had contributed to the death of two patients at the same hospital. The Chief Executive, the Medical Director and the Clinical Director were all summoned to give evidence, and were criticised20. In addition, the NPSA published an alert in relation to the distance that key personnel may be from the location of the emergency work that they provide. It recorded several cases in which the delay was detrimental to patient care21.
In another case, it was suggested that a consultant had failed to appropriately supervise a trainee anaesthetist, as a result of which the patient died22. In the latter case a Consultant anaesthetist delegated a simple emergency procedure to a trainee, and left the premises to go to a garage a small distance away to fill his care with petrol. The trainee experienced difficulty with the airway, and the patient died. The Sheriff concluded that if the consultant had been on site the patient’s death may have been prevented; but an internal enquiry concluded that he was near enough to respond appropriately had a request for assistance been made
The dilemma of the medical manager is therefore to maintain service integrity to ensure patient and staff safety whilst complying with the EWTD and other relevant legislation, in the face of limited resources. These cases suggest that availability, delegation and response times are also important considerations. A failure to satisfy any of these requirements that resulted in death could result in a manslaughter charge.
Apart from the Bristol Heart inquiry23,24, the GMC has not really had to address the position of doctors in management in relation to the adequacy of the service provided. The Chief Executive of the Trust was a Consultant Radiologist, who was still on the medical register. He had been made aware by a variety of mechanisms that there were specific concerns about a high mortality rate in relation to paediatric cardiac procedures. He was found guilty by the GMC for not acting to properly investigate the concerns, or to suspend surgery whilst such an investigation took place. The Court of Appeal ruled that it was not sufficient for the doctor to state that he was acting as an administrator, and not a doctor. There was a duty to ensure patient care was appropriate even if the doctor was not administering that care directly, and even if they were merely acting as a manager to other doctors who were delivering the care.
Such problems continue to occur. The Francis Report25 suggested that widespread management failings at the Mid Staffordshire Trust may have contributed to an excess number of patient deaths. One of the findings, for example, was that three consultants were doing the work of six in the A&E department. Specific criticism of both the Medical and Nursing Directors has been made. At the time of writing it has been reported that the GMC and the NMC are investigating clinical staff in relation to these conclusions26.
A recent inquest concluded that a GP locum from Germany, Dr Ubani, committed a series of errors whilst working for an out of hours service in the UK. Dr Ubani commenced work without adequate rest, and without an induction. His command of English was poor, and his understanding of British prescribing practise was also inadequate. One patient died from an overdose of diamorphine. Whilst Dr Ubani was responsible for his own decisions and actions, it seems that a series of management failures failed to put in place appropriate checks and balances to maintain patient safety. Certainly it appears no attempt was made to ensure that he was not impaired by fatigue. The relatives of a patient who died are thought to be considering civil manslaughter actions against the employing PCT and its officials27, 28.
Conclusion
Whilst a rare occurrence, it is possible that doctors may find themselves accused of medical manslaughter. The legal process is clumsy and long, and so it may be that local and professional regulatory process will have to evolve to take timely and appropriate action in such cases, as prosecution for manslaughter in clinical circumstances is unlikely to achieve a satisfactory conclusion for relatives, individual doctors or the profession unless the grossest negligence is the cause
This does not belie the personal and professional stress that results from the investigation and any legal proceedings. Even if a prosecution is unsuccessful, it is possible that the doctor will still face disciplinary sanction from the GMC if severe negligence is proven. Medical managers may be in a more vulnerable position than their clinical colleagues because of the larger range of responsibilities they have.
References
- GMC guidance Good medical practice GMC 2006 http://www.gmc-uk.org/guidance/good_medical_practice.asp (accessed 31/5/2011)
- GMC guidance “Management for Doctors” 2006 http://www.gmc-uk.org/guidance/ethical_guidance/management_for_doctors.asp (accessed 31/5/2011)
- http://legal-dictionary.thefreedictionary.com/negligence
- Calhaem -v- General Medical Council. [2007] All ER (D) 300
- Cohen v General Medical Council [2008] All ER 307
- The Homicide Act 1957 (5 & 6 Eliz.2 c.11)
- R v Bateman (1925 19 Cr App R8)
- Broadhurst HC report of the trial of Rex vs Bateman BMJ . P49 BMJ Jan 3 1925 http://www.bmj.com/content/1/3340/49.2.full.pdf?sid=ff53b5b6-bf07-49db-91b4-d7b6db42ef41 (accessed 25/4/2011)
- R v Adomako [1995] AC 171. 30 June 1994
- Dyer C Doctors face trial for manslaughter as criminal charges against doctors continue to rise BMJ 325 : 63 doi: 10.1136/bmj.325.7355.63 (Published 13 July 2002) http://www.bmj.com/content/325/7355/63.1.full?sid=ff53b5b6-bf07-49db-91b4-d7b6db42ef41) (accessed 24/4/2011)
- Ferner RE McDowell SE Doctors charged with manslaughter in the course of medical practice. 1795-2005: a literature review J R Soc Med 2006 99(6) 309-314
- R v Misra and Srivasta [2004] EWCA Crim 2375
- R v Misra & Srivastava [2005] 1 Cr App R 328 Court of Appeal
- Dyer C Surgeons cleared of manslaughter after removing wrong kidney BMJ 2002;325:9 (Published 6 July 2002) 14,15
- Kennedy T “Cumbrian OAP died after feeding tube inserted into lungs - inquest” News & Star 5/6/10 http://www.newsandstar.co.uk/news/doctor-and-2-nurses-quizzed-over-death-1.716902?referrerPath=/news_round-up_1_96082 (accessed 20/4/11)
- Corporate Manlaughter and Corporate Homicide Act 2007 (28)OPSI 2007
- Welham M Corporate Manslaughter: The UK Draft Bill 2005 http://www.sheilapantry.com/cis/cis200505.html#FOCUS (accessed 18/4/11)
- Centre for Corporate Acountibility http://www.corporateaccountability.org/manslaughter/cases/main.htm 2 (accessed 20/3/11)
- European Council Directive 93/104/EC 23/11/93 http://www.eu-working-directive.co.uk/directives/1993-working-time-directive.htm (last accessed 24/2/10)
- Savill R “Coroner criticises EU working time directive after hearing of doctor shortage” 10/9/10http://www.telegraph.co.uk/health/healthnews/7995374/Coroner-criticises-EU-working-time-directive-after-hearing-of-doctor-shortage.html (accessed 21/3/11)
- NPSA Distance to travel for key on-call staff NPSA 27/11/09 http://www.nrls.npsa.nhs.uk/resources/?EntryId45=65334 (accessed 1/2/11)
- Williams W 15/9/04 “Doctor who left theatre to buy petrol is cleared Woman died during surgery” Scottish herald 15/9/04 http://www.heraldscotland.com/sport/spl/aberdeen/doctor-who-left-theatre-to-buy-petrol-is-cleared-woman-died-during-surgery-1.75571 (accessed 31/1/11)
- The Bristol Royal Infirmary Inquiry An inquiry into the management of care of children receiving complex heart surgery at the Bristol Royal Infirmary (2001) http://www.bristol-inquiry.org.uk/ (accessed 27/1/11)
- Roylance v GMC [2000] 1 AC 311
- The Mid staffordhireNHS Foundation trust Inquiry Independent Inquiry into care provided by Mid Staffordshire NHS Foundation Trust January 2005 – March 2009 2009 http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_113068.pdf (accessed 27/12/2010)
- Schlesinger F Declan A Shipman T “Up to 1,200 needless deaths, patients abused, staff bullied to meet targets... yet a secret inquiry into failing hospital says no one’s to blame” 25/2/10 http://www.dailymail.co.uk/news/article-1253438/Mid-Staffordshire-NHS-hospital-routinely-neglected-patients.html
- The Telegraph “Dr Daniel Ubani inquest: widow Iris Edwards died after visit from doctor” http://www.telegraph.co.uk/health/healthnews/7161561/Dr-Daniel-Ubani-inquest-widow-Iris-Edwards-died-after-visit-from-doctor.html
- The Telegraph “Daniel Ubani inquest: NHS failings allowed killer doctor to work” (published 5/2/10)http://www.telegraph.co.uk/health/healthnews/7161266/Daniel-Ubani-inquest-NHS-failings-allowed-killer-doctor-to-work.html
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