Can a doctor, hospital or healthcare administrator be charged with the manslaughter of a patient who dies in their care?
By law, yes - under the offence of gross negligence manslaughter.
The principles of gross negligence manslaughter apply equally in healthcare as they do in other instances of gross negligence manslaughter such as fatal road traffic accidents. For gross negligence manslaughter in the medical context, the diagnosis or treatment must have involved a very high degree of negligence involving a risk or likelihood of substantial personal injury to others.
Yet as far as we are aware there have been no prosecutions in the healthcare sector for gross negligence manslaughter in Ireland. Compare this with the UK, where although the threshold for gross negligence manslaughter is higher than in Ireland, 47 healthcare professionals (including 37 doctors) have been prosecuted since 1994. Twenty-three of these healthcare professionals were convicted, and only four convictions were overturned on appeal. A recent UK Government report on gross negligence manslaughter in the healthcare sector referred to this level of prosecutions as “rare” and the level of convictions as “rarer still”. This raises the question as to why the law on gross negligence manslaughter is not being enforced in the Ireland.
ORDINARY MEDICAL NEGLIGENCE
A doctor or hospital may be liable in negligence where it is established that they deviated from a generally approved practice in such a way that no doctor of the same specialisation and skill would have followed the same approach if he/she were taking the ordinary care required by a person of his/her skill and qualifications. A doctor will not escape liability if he/she followed a generally approved medical practice if the practice had inherent defects which should have been obvious to anyone giving the issue proper consideration.
A negligence action can also be taken against a hospital or healthcare administrator on the basis that the hospital practice or procedure was defective. In such circumstances, the hospital administrator is treated as if he/she had personally carried out the treatment or diagnosis.
GROSS NEGLIGENCE MANSLAUGHTER - THE PRINCIPLES
Unsurprisingly, the threshold for gross negligence manslaughter is much higher than that required for a civil claim:
» Negligence in this context means a failure to observe such a course of conduct as experience shows to be necessary if the risk of injury to others is to be avoided.
» The negligence of the accused must be responsible for the death in question.
» Ordinary carelessness falls short of what is required in a case of manslaughter.
» The negligence must be of a very high degree and involve, in a high degree, the risk or likelihood of substantial personal injury to others.
THE UK POSITION
The test for gross negligence in England requires that the defendant’s negligence must pose a risk of death. This can be contrasted with the position in Ireland, where the risk is that of substantial personal injury. The threshold for gross negligence therefore appears to be lower here than in England.
However, UK cases are instructive in terms of the level of negligence and factual situations that might sustain a prosecution or conviction in the healthcare sector in Ireland:
» Conviction of an anaesthetist where a ventilator became disconnected during surgery and the patient suffered a heart attack and died. The anaesthetist failed to notice the deceased was getting progressively blue and did not think there was an emergency until the alarm went off. Expert witnesses described the standard of care as abysmal.
» Conviction of two doctors involved in the post-operative care of a 31-year-old man who had undergone routine knee surgery. The patient later died of toxic shock syndrome when his wound became infected. He showed classic signs of infection: raised temperature and pulse rate and lowered blood pressure. The doctors failed to appreciate that the patient was seriously ill, and failed to obtain or act upon blood test results. Expert evidence given at trial stated that even a final year medicine student would have been expected to recognise the severity of the illness. » Conviction of a registrar who directed a more junior doctor to inject a drug into the spine of an 18-year-old leukaemia patient when the drug should have been administered intravenously. While there was also a failure by the hospital to maintain a system which would have avoided the mistake, the registrar should have checked and ensured that the drug was not administered in the wrong manner.
» Conviction of a specialist paediatric registrar who was left the sole person in charge of an Emergency Department and Acute Children’s Assessment Unit, after a six-yearold boy admitted with diarrhoea, vomiting and difficulties breathing later developed septic shock and died. The court highlighted a number of errors made by the doctor, including failing to recognise from blood test results that the boy was in shock, failing to properly review a chest x-ray, and mistakenly thinking the boy was under a do-notresuscitate order. The doctor was sentenced to two years in prison, suspended for two years. She was also suspended from practising as a doctor and, on appeal by the General Medical Council, was later struck off. However, the Court of Appeal recently ruled that there should be no presumption of erasure following a conviction for manslaughter by gross negligence, and sent the matter back to the Medical Practitioners Tribunal Service to review the suspension.
According to the recent UK Government Report, since 2013 the UK Crown Prosecution Service (CPS) has been involved in 151 cases of suspected gross negligence manslaughter involving a healthcare professional. Seven of the cases referred to the CPS resulted in a prosecution, leading to four convictions and three acquittals. A further 16 cases are still being considered by the CPS. This contrasts greatly with the position in Ireland and the reasons for this disparity warrant further consideration.