Medical mistakes happen and their consequences can be fatal. If a death is caused by negligence, not only is a civil claim for damages likely but the doctor concerned could also face a criminal charge of manslaughter.
Now proposals by the Law Commission recommend the introduction of a new criminal offence of 'corporate killing', which could leave trusts more liable to prosecution.
Manslaughter prosecutions against doctors were once unheard of. Between 1925 and 1989 there were no successful prosecutions.
But in 1990 three doctors, all anaesthetists, were charged - and two convicted. We can only speculate on the reasons for this sudden activity. At the time, the director of public prosecutions denied any policy to target more negligent doctors. Since then there have been several cases, but manslaughter prosecutions are still rare, and successful ones rarer.
But police investigation into healthcare has become more common. It can be time-consuming and stressful for everyone, and what starts as an investigation into one person's conduct can develop into a far more wide-ranging enquiry.
When does negligence become criminal? In a civil claim for damages, once negligence is established, the extent of a defendant's liability simply depends on the amount of damage caused. But for the purposes of the criminal law, there are degrees of negligence, and this must be gross to result in a conviction. It is for the jury to consider whether 'the negligence or incompetence of the accused went beyond the mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime'.1
When deciding whether this should be characterised as gross negligence and therefore as a crime, the jury must consider the seriousness of the breach of duty in all the circumstances and whether the departure from the proper standard of care was such that it should be judged criminal.2 So, negligence is a crime when it reaches the level that a jury considers to be criminal.
Doctors in the dock
The House of Lords case reaffirming and clarifying this test is a medical one.2 Here, an anaesthetist failed to notice during an eye operation that the patient's endotracheal tube had become disconnected from the mechanical ventilator. He first became aware something was wrong when the blood pressure alarm sounded, probably some four-and-a-half minutes later, but he still did not check the tube connection. The patient suffered a cardiac arrest, and it was only during resuscitation that the disconnection was discovered.
The prosecution alleged that the anaesthetist was guilty of gross negligence for failing to notice or respond appropriately to obvious signs that a disconnection had occurred and that the patient had stopped breathing.
The anaesthetist accepted that he had been negligent. The issue was whether his conduct was criminal. The jury considered that it was, he was convicted of manslaughter, his appeal dismissed and he was sentenced to six months' imprisonment suspended for 12 months.
When this case was in the Court of Appeal, appeals by two other doctors against convictions of manslaughter were also being heard.3 They had each been convicted of manslaughter and received a nine-month suspended prison sentence after the death of a 16-year-old leukaemia patient.
The patient had attended hospital regularly for injection of cytotoxic drugs. Once a month he was injected intravenously with vincristine and every other month intrathecally with methotrexate. The pre-registration house officer was asked to administer these drugs. He was reluctant to do the lumbar puncture because of his inexperience and a house officer agreed to supervise him, though his own experience of cytotoxic drugs and performing lumbar puncture was also limited.
The pre-registration house officer inserted the lumbar puncture needle and then asked for the drugs. The house officer handed him each of the syringes in turn, and both were injected into the spine. Neither doctor checked the labels on the syringes or on the box in which they were kept.
The pre-registration house officer denied responsibility for the death, contending that he was at all times under the house officer's supervision. The house officer made it clear that he thought he was supervising only the lumbar puncture, not the administration of the drugs.
The prosecution's case against the pre-registration house officer was that his behaviour was reckless. It was argued he ought to have known of the dangers of the injection into the spine of vincristine, ought to have checked the labels either on the box and/or on the syringes before injecting and that he had given no thought to any of this.
The case against the house officer was that he, too, was reckless. He had a duty to supervise the whole of the operation and ensure the right drugs were injected in the right place. At the very least, he had a duty to intervene when he saw the other doctor was preparing to inject the patient without having checked the labels.
The doctors' appeals were allowed and the convictions quashed on the ground that the trial judge had failed to direct the jury that they were to decide whether the defendants were guilty not of 'recklessness' but of 'gross negligence', and that excuses and mitigating circumstances could be taken into account.
There were mitigating circumstances here. Both doctors were very junior and had only been working at the hospital a matter of weeks. Neither had been trained in the use of cytotoxic drugs, and a trained nurse had left them to be assisted by two students. The pre-registration house officer who actually gave the fatal injection had asked for supervision, thought he had it and was actually handed the two syringes by the house officer who watched him administer the drugs. The house officer believed he was simply required to supervise the insertion of the lumbar puncture needle. But we do not know whether, if the jury had been properly directed that such circumstances could be taken into account, they would still have considered the doctors' negligence to be gross and thus a crime.
This was not the first time this particular medical error had occurred, nor the last. Earlier this year, the Crown Prosecution Service dropped the charges against two doctors at Great Ormond Street Hospital for Children in a very similar case (see box).
One case in which the doctor was acquitted by the jury concerned another very junior doctor, working in a specialist neurosurgical unit.4 A patient had been admitted with blocked intraventricular shunt, for which an emergency procedure was set up to drain the build-up of fluid and ease pressure on the brain. The patient was also being fed and given antibiotics intravenously. The tubes were not colour-coded and, when attempting to give an antibiotic injection into the intravenous line, the doctor injected it instead into the tube leading to the brain.
The doctor concerned was not yet fully registered but at night was in charge of 100 patients requiring specialist care. She had worked more than 100 hours in the week before the incident. There could be no argument that she had been negligent but the jury did not think this amounted to gross negligence required for the criminal conviction of manslaughter.
Should the organisation be held responsible? As the cases have shown, organisational failures may provide individuals with a defence to a criminal charge. If no individual is prosecuted or the prosecution fails, this does not deny the family their civil remedy, and they may still successfully sue the relevant organisation for damages.
At present, a corporation, trusts included, could also be charged with manslaughter if it has caused death by gross negligence. A corporation can be found criminally liable through the conduct and mental state of only certain personnel - those who represent its 'controlling mind' - the directors or senior officers who speak and act on behalf of the company. Prosecutions are rare, success even rarer, as shown by the collapse of the prosecution of Great Western Trains over the Southall rail crash.
Aggregation of acts or faults by several individuals is not enough. As long ago as 1987, a hospital in the Netherlands, where there is no such rule against the aggregation of fault, was successfully charged with corporate manslaughter. But there has been no successful prosecution of a trust or health authority in the UK.
All this could change. The Law Commission has recommended the introduction of a new criminal offence of 'corporate killing' punishable by an unlimited fine and/or compulsion to take remedial action to ensure future safety.5 This offence would be committed where a management failure results in death and where that failure amounts to conduct far below that which could be reasonably expected in the circumstances.
If and when these proposals are implemented it would mean that the organisation may be guilty of corporate killing, even though no one individual is responsible.
1 Rex v Bateman. 1925, 19 Cr. App. R. 8.
2 Regina v Adomako 1994, 3 WLR 288.
3 Regina v Prentice; Regina v Sullman 1993, 3 WLR 927.
4 Regina v Teoh (unreported).
5 The Law Commision. Involuntary manslaughter, report no. 237, 1996.
Gay Wilder is a partner with health law group Browne Jacobson