Introduction

The Public Inquiry into the events at Mid Staffordshire NHS Foundation Trust led to Sir Robert Francis calling for a cultural shift in attitude within the NHS to put patients first. The Government has since consulted on a number of responses including a new criminal offence of wilful neglect. This article reviews how healthcare professionals and organisations can be prosecuted under gross negligence manslaughter and corporate manslaughter offences and how a new offence of wilful neglect might operate alongside this.

This area of law is one that should be increasingly on the radar of clinical negligence lawyers when advising their clients, with appropriate specialist criminal law input being made available to the client, where necessary, so that clients can consider both civil action and a criminal complaint.

Gross negligence manslaughter

Prosecutions for gross negligence manslaughter are slowly on the rise.  For example:

  • 41 prosecutions between 1795 and 1974.
  • 44 prosecutions between 1975 and 2005.
  • 44 investigations started between 1996 and 2005.

Specialist police teams across the country investigate gross negligence manslaughter and corporate manslaughter offences. With the assistance of medical experts, high profile convictions have followed. In November 2013, David Sellu, a private surgeon, was convicted of gross negligence manslaughter and received a two and a half year custodial sentence for failing to operate on his patient for 40 hours despite knowing he had a perforated bowel.

The test to establish criminal liability for gross negligence manslaughter (a common law offence) was set out in R v Adomako [1994] 3 All ER 79.  Dr Adomako was an anaesthetist who failed to notice for over four minutes that a tube carrying oxygen to his patient had become dislodged. His patient, undergoing only minor eye surgery, died. Dr Adomako appealed his first instance conviction to the Court of Appeal. His appeal failed. The Court of Appeal said:

his essential and…sole duty [was] to see that his patient was breathing satisfactorily…his failure was more than mere inadvertence and constituted gross negligence of the degree necessary for manslaughter

The Court of Appeal formulated the following test to establish gross negligence manslaughter: 

  1. The defendant owed the deceased victim a duty of care.
  2. The defendant breached their duty of care; and
  3. The breach caused, or significantly contributed to, the death of the victim. 
  4. The breach was so grossly negligent as to constitute a crime.

The prosecution is required to prove that this test has been satisfied, beyond reasonable doubt, rather than on the civil standard of the balance of probabilities. A jury must consider the extent to which the defendant’s conduct departed from the proper standard of care and assess whether this conduct was so grossly negligent as to constitute a crime. The term ‘reprehensible’ has been used by the judiciary to describe the nature of such conduct. 

The Court of Appeal heard Dr Adomako’s appeal alongside appeals from two junior doctors also convicted of gross negligence manslaughter: Dr Sullman and Dr Prentice. 

Dr Prentice had fatally administered the wrong chemotherapy drug into the spine of a 16 year-old boy suffering from leukaemia.  Dr Sullman thought he was supervising a lumbar puncture, rather than checking Dr Prentice was giving the correct medication. Both doctors had previously been convicted of gross negligence manslaughter but, unlike Dr Adomako, the Court of Appeal overturned their convictions because of insufficient evidence of grossly negligent treatment (of note, at first instance, the sentencing judge had said: ‘you could have been helped more than you were helped – you are far from being bad men’).   

The Court of Appeal ruled that at least one of the following must be answered in the affirmative to establish grossly negligent treatment:

  1. Did the doctor show indifference to an obvious risk of injury to his patient?
  2. Was he (or she) aware of the risk but decided (for no good reason) to run the risk?
  3. Were efforts to avoid a recognised risk so grossly negligent as to deserve punishment?
  4. Was there a degree of inattention or failure to have due regard to risks beyond mere inadvertence.

The Adomako test was challenged on appeal under Article 7 of the European Convention on Human Rights in the case of R v Misra and Srivastava [2005] 1 Cr App R 328 on the basis that its formulation lacked certainty. Drs Mistra and Srivastava were convicted of gross negligence manslaughter for their failure to treat a patient’s post-operative infection over the course of two days. Both doctors failed to follow up blood tests and heed other colleague’s warnings about the patient, who subsequently died. The Court of Appeal ruled that the formulation of the Adomako test was not uncertain because it had safeguards:

  1. Criminal liability did not depend on the jury’s purely subjective perception of the defendant’s conduct. Only proof of gross negligence transforms simple negligence.
  2. In determining gross negligence the jury must consider all the facts of the case.
  3. Gross negligence manslaughter is not a crime without mens rea. It may be used to describe an element of fault or culpability which the exceptionally bad nature of the negligence supplies, rather than the defendant’s own state of mind.

The appeal failed. The Adomako test therefore remains good law; however, the uncertainty of proving gross negligence may continue to affect the Crown Prosecution Service when it is deciding whether to follow through with a Police investigation into the possible prosecution of a healthcare professional.  Given the ultimate question, whether the individual’s conduct was so grossly negligent so as to amount to a criminal offence is a question for the jury hearing the facts of the case and is, therefore, inherently uncertain.

Corporate manslaughter

Before the Corporate Manslaughter and Corporate Homicide Act 2007 (the “Act”) came into force on 6 April 2008, companies could be prosecuted for common law gross negligence manslaughter, subject to the identification principle that in order for a company to be guilty of the offence, it was necessary that a senior individual with a controlling mind of the company was also guilty of the offence. This limited the number of successful prosecutions.

When the Herald of Free Enterprise car ferry capsized in 1987 (after the bow doors failed to close) 193 people died but a manslaughter charge against the company failed because the various acts of negligence could not be attributed to any particular individual with a controlling mind.

Only Peter Kite (owner of OLL Limited) has been convicted of gross negligence manslaughter and his company fined as a result of the deaths of four teenagers while canoeing in 1993. Mr Kite was found guilty because he was directly in charge of the activity centre where the children were staying.

The offence under the Act however sought to overcome this limitation. Section 1 states:

An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised:

  • causes a person’s death; and
  • amounts to a gross breach of a relevant duty of care owed by the      organisation to the deceased.

Section 3 of the Act states:

An organisation is guilty of an offence if the way in which its activities are managed or organised by its senior management is a substantial element in the breach. 

An organisation can include statutory public bodies, such as the NHS. The scope of the relevant duties of care owed to the deceased (which is a matter for the trial judge rather than the jury) stem from the law of negligence, rather than statutory duties under Health and Safety Law, but the overlap between these two areas is clear in the Act.

When assessing whether there is a gross breach, juries must consider how serious the breach of the relevant duty was and how much of a risk of death it posed. Put differently, either there was a serious and obvious risk of death from the specific act being undertaken or, even if the risk of death was small, the way senior management approached health and safety was so lax than an accident was always likely to occur.

Juries can also take account of health and safety guidance and the extent to which the evidence shows attitudes, policies or systems within the organisation were likely to have encouraged any serious management failure or to have produced tolerance of it.   

A gross breach must be directly attributable to a senior management failure. Senior management includes those whose involvement is significant and influential, not just those who just carry out the organisation’s activities. The prosecution must prove beyond all reasonable doubt that the breach fell below what could be reasonably expected of the organisation, in the circumstances, and that it was more than a minimal contribution to the death.

There have been very few prosecutions for corporate manslaughter under the Act. Most have involved small, owner-managed companies. For example, J Murray and Sons Ltd were convicted following the death of an employee who was dragged into an animal feed mixing machine. The company pleaded guilty to corporate manslaughter and were fined £100,000. Charges for gross negligence manslaughter against the company owner, Mr Murray, were not pursued, so a custodial sentence was avoided.

There have been police investigations into NHS Trusts but no prosecutions, to date. The author is aware, however, that the CPS is currently reviewing an investigation report into corporate manslaughter provided by the Metropolitan Police into a maternal death at Croydon Hospital in June 2010.

Inadequate staffing and training looks like the most obvious route for prosecutors to establish that the activities of senior management have been a substantial element in any breach. Difficulty does remain as to whether such breaches can be causally linked to a person’s death, as well as establishing that any breach meets the criteria for a gross breach as set out in Section 8 of the Act.  For example, a “rogue” doctor acting ultra vires could be raised by senior management as one potential defence.

Wilful neglect

A new statutory offence of wilful neglect has been accepted by the Government in response to a November 2013 recommendation from the National Advisory Group. The model for this stems from existing wilful neglect offences under the Mental Health Act 1983 and Mental Capacity Act 2005 which provide protection to mentally incapable adults against ill treatment and wilful neglect. Ill-treatment includes deliberate: physical, sexual, discriminatory, psychological, financial or emotional abuse and wilful neglect usually means deliberate neglect or reckless failure to carry out reasonable, appropriate, or agreed care which the organisation knew they had a duty to provide. 

A conviction can result in a custodial sentence of up to five years and a large fine. Care home staff including frontline workers and managers have been successfully prosecuted.  In 2012, Karen Southern, a care home manager, was sentenced to eight months imprisonment (suspended for two years), ordered to perform 120 hours unpaid work and pay £5,000 costs for failing to safeguard residents care. She was found to have failed in her duty to provide sufficient resources, including staffing, upkeep and cleaning, to afford even the most basic care needs to residents. 

In a similar 2008 prosecution a care home-owner and manager, Kathleen Vittirini, was jailed for six months for wilful neglect of one of her residents. Passing sentence, Mr Justice Irwin said: ‘those who wilfully neglect, with serious consequences, should expect to go to prison. That is the message that should go out’.

In June 2014 the Government published its response to the Consultation to the new offence of ill-treatment or wilful neglect. They key points arising from this were:

  1. A majority of respondents were in favour of the new offence to fill the gaps in existing legislation to protect patients from wilful neglect. The Royal College of Physicians said: ‘In the rare instances where a practitioner is aware of the risk to their patient, but shows wilful disregard of the risk, they should face criminal sanction’. The Government will, therefore, move forward to establish this new statutory offence.
  2. The offences will apply to all formal health and social care settings, public and private because patients should be afforded with the same safeguards, whatever the setting.
  3. The offences will apply to all formal healthcare settings where healthcare is provided to children but not to non-healthcare services for children.
  4. The offences will focus on conduct rather than outcomes, with no threshold of harm.
  5. There will be offences applicable to both individuals and organisations.  Offences for care provider organisations will be based on the corporate manslaughter formulation. 
  6. The penalties for conviction will mirror those under the Mental Health Act. For care organisations, penalties will also include fines, publicity orders and remedial orders.

Subject to Parliamentary approval, the Government envisages this new offence will come into effect in 2015.   

Discussion

Healthcare professionals rightly want the Government to consider carefully the drafting of new legislation that could result in custodial sentences. With the Government estimating up to 240 wilful neglect prosecutions per year (at an annual estimated cost of £2.2 million) they are keen to ensure accidents or genuine mistakes do not fall within the scope of the offence. This is particularly so because wilful neglect is a conduct offence and healthcare professionals and organisations can be found guilty even if the wilful neglect did not result in harm. 

The Government has acknowledged that this new offence may have unintended negative consequences and potentially conflict with the aim of encouraging a culture of openness. Is it feasible to have a statutory duty of candour and a statutory offence of wilful neglect? Will healthcare professionals begin practicing inappropriate defensive medicine to protect themselves? The response put forward by the wilful neglect consultation is that however valid these concerns may be they should not trump an offence that is designed to put patients first, by legislating to criminalise the conduct of a very small number of healthcare professionals and organisations. With adequate safeguards, prosecutions should restore accountability in patients’ eyes and, for a minority of healthcare professionals who require it, act as a deterrent not to wilfully neglect their patients or their duties.

Other responses to the consultation questioned the need for such an offence in light of the existing professional regulatory structures. The Medical Defence Union noted that the threshold for a finding of impaired fitness to practice is of a civil standard, lower than the criminal standard, thus providing greater protection to patients, especially if that individual is struck of their professional register.  The consultation response to this was two-fold: first, not all healthcare professionals are subject to regulation and; second, the new wilful neglect offence deals with a deliberate or reckless “couldn’t care less attitude” which is a step up from the existing offences. This element, in the Government’s opinion, merits a response beyond the solely regulatory.

Conclusion

Investigation into and prosecutions of healthcare professionals and organisations are on the rise. Most notably, in the field of Health and Safety Executive prosecutions which might suggest criminal prosecutors may still be reluctant to rely on the common law offence of gross negligence manslaughter and the statutory offence of corporate manslaughter. Given the limitations of the offences explored in this article – particularly, defining what constitutes grossly negligent treatment – coupled with gaps in professional regulation, it is possible a newly formulated offence of wilful neglect or ill-treatment may in fact simplify the law and thereby enable the more efficient prosecution of healthcare professionals and organisations where this is deemed necessary.

Whatever the final outcome, civil law practitioners will need to be more alive to the potential for criminal prosecutions in both fatal and, under the new offence of wilful neglect, non-fatal clinical negligence claims.

This article first appeared in Personal Injury Law Journal in December 2014.