R v Dr Errol Cornish and Maidstone and Tunbridge Wells NHS Trust

Yesterday, the trial of Maidstone and Tunbridge Wells NHS Trust and a consultant anaesthetist came to an abrupt end in the Inner London Crown Court.

The Trust had been charged with corporate manslaughter and the consultant with gross negligence manslaughter, but after two weeks of evidence both cases were dismissed by Mr Justice Coulson on the basis that there was no case to answer.

The case was groundbreaking in that, although a number of medical professionals had been subject to manslaughter proceedings over the past years, it was the first in which an NHS trust had been charged with the very serious offence of corporate manslaughter.

Background

At around 12:20 on 9 October 2012, having undergone successful surgery for heavy bleeding following the caesarean delivery of her second son at Pembury Hospital in Tunbridge Wells, Frances Cappuccini was put in the care of anaesthetist, Dr Nadeem Azeez. By 16:20 she had died. The prosecution alleged a catalogue of gross failings in the interim, by both Dr Azeez, a Specialty Doctor, and Dr Errol Cornish, a locum consultant anaesthetist who arrived to assist Dr Azeez from around 13:00.

Having left the UK and despite the authorities’ attempts to secure his return, Dr Azeez did not feature as a defendant in the trial. So Dr Cornish was the only individual defendant charged alongside the Trust.

Primarily because of the connection between their actions and the impact on the case against the Trust, in the course of the trial the prosecution sought to prove that both Dr Azeez and Dr Cornish were grossly at fault and that their failings were a cause of Mrs Cappuccini’s death. The prosecution were also looking to prove that the Trust was guilty of criminal failings at senior management level which played a part in the death.

Prosecution case

At the start of the trial John Price QC delivered the prosecution’s opening speech to judge and jury. He explained that the prosecution would be attempting to demonstrate that:

  • Tasked with helping Mrs Cappuccini to regain consciousness and an independent breathing effort after her surgery under general anaesthetic, over a lengthy period of time Dr Azeez failed to ensure that her lungs were adequately ventilated. Critically, there were clear and serious problems with her breathing almost from the moment he extubated her, at 12:30. Yet, knowing that inadequate ventilation can cause serious brain damage within five minutes, Dr Azeez decided against reintubating. He compounded this, the prosecution said, by failing to request assistance from his senior colleague, Dr Cornish, until at least 30 minutes later.
  • According to the prosecution, Dr Cornish, on the other hand, seemed to appreciate quite early on that Mrs Cappuccini would require intubation and transfer to the intensive care unit. However, he and Dr Azeez spent the next 45 minutes at her bedside discussing the situation and carrying out various treatments which were ineffectual. Although it was essential that Mrs Cappuccini be reintubated without delay, Dr Cornish failed to do this. It was only when another consultant anaesthetist arrived, at 13:55, that reintubation finally took place.
  • Turning to the Trust, the prosecution would try to prove that at senior management level it knew or ought to have known that neither Dr Azeez nor Dr Cornish were suitably qualified or trained and therefore not competent to perform the job they were asked to do on 9 October 2012. In addition, the arrangements for supervising Dr Azeez fell far below what should have been expected.

It was also interesting to note that the prosecution were arguing that the Trust’s guilt was contingent on the gross negligence of Dr Cornish and Dr Azeez. Accordingly, if Dr Cornish were acquitted so too would be the Trust. If Dr Cornish were convicted, however, the prosecution would still have to prove that the Trust’s senior managers were guilty of their own gross failings, in terms of assessing the doctors’ competence and arranging the necessary supervision.

Key issues

As is the case in many corporate manslaughter proceedings, this trial was set to involve the scrutiny of a variety of industry guidance. On this occasion, most of that guidance had come from the Royal College of Anaesthetists, focussing on the required qualifications, training, supervision and experience of different grades of anaesthetist. A compare and contrast analysis was to be carried out between that guidance, the Trust’s written policies and procedures, and what was done in practice.

The trial was also set to explore the Trust’s wider management arrangements and culture:

  • Were clinical staff “dropped in at the deep end”?
  • Were foreign qualified doctors properly assessed?
  • What was done to ensure locums were up to the job?
  • Was anything done when the performance and development of individual doctors was seen to be lacking?

No case to answer

In the event, however, Coulson J was not satisfied by two weeks of prosecution evidence that there was a case to answer against either Dr Cornish or the Trust, commenting, “I am firmly of the view that it would be unsafe and unfair to everyone, including Mrs Cappuccini's family, to leave this case to the jury.”

Indeed, in what might be considered an indictment of the Crown Prosecution Service’s (CPS) decision to bring the case in the first place, he went on to say that there was little or no evidence Dr Cornish had done anything wrong that had contributed to Mrs Cappuccini's death and his actions were “as far removed from a case of gross negligence manslaughter as it's possible to be”. He also made clear his view that there was no evidence of a systemic failure at the Trust.

The CPS has since seemingly confirmed its decision not to appeal Coulson J’s ruling.

Implications

So where does all this leave medical professionals, hospitals and trusts?

Although this particular prosecution appears to have been ill-conceived and over-ambitious, the issues raised in the course of the trial remain very important ones. In particular, from an organisational point of view, the focus was on the appropriate level of training, experience and supervision of Specialty Doctors and locum consultants.

Trusts should expect scrutiny of these and other management systems whenever concerns are raised about the competence of individual clinicians, whatever their position in the chain of command.