New Sentencing Council guidelines may increase prison sentences for doctors

Recently there has been a significant increase in the number of prosecutions of clinicians and other healthcare workers for gross negligence manslaughter (GNM).

Unfortunately such prosecutions are likely to impede safe healthcare by discouraging honest reporting of medical errors, and although there are few prosecutions, they are very erosive of morale.

There is therefore considerable concern about the current Sentencing Council guidelines, which are out for consultation on the appropriate sentences for manslaughter. The guidelines set out criteria for culpability among which are that: 

  • The offender was in a dominant role if acting with others.
  • The offender was clearly aware of the risk of death arising from the offender’s negligent conduct.

Unfortunately these criteria will almost always apply to doctors caring for their patients if complications develop that are deemed to be the result of negligence. There is therefore serious concern that doctors convicted of GNM will now face more severe sentences.

What are your views and what is to be done?

Do add your own thoughts and comments to this blog.

Comments (7) Add yours ↓
  1. Michael Wills Lord

    The Sellu case illustrates the problems – that’s why the dialogue now opening up between the CPS and the medical profession is so important

    July 17, 2017 Reply
  2. Roger Kirby Professor of Urology

    Lord Michael Wills makes a good point. You only have to read the blog about the conviction, imprisonment and eventual quashing of the verdict to understand the concern that has resulted from the David Sellu case: http://www.bjuinternational.com/bjui-blog/are-you-ready-to-go-to-prison-on-a-manslaughter-charge/.
    Increasing the severity of the sentence for perceived gross negligence manslaughter will only increase the level of anxiety among healthcare workers and deter many from entering the profession. We are currently making these views clear to to the Crown Prosecution Service

    July 18, 2017 Reply
  3. Duncan Summerton Consultant Urological Surgeon

    Sadly another potential deterrent to those considering a medical career. Whilst it is an absolute privilege to look after our patients, the environment in which we do this is being degraded year on year and the associated stresses continue to increase. This is reflected in the competition rates to enter surgical training which are significantly down from those a decade ago.

    The NHS is facing a serious manpower crisis and this, I fear, will not help.

    July 20, 2017 Reply
  4. Roger Kirby Professor of Urology

    We are currently making plans for a workshop in conjunction with the Crown Prosecution Service (CPS) in the autumn to see what can be done to reduce the number of prosecutions of healthcare workers for gross negligence manslaughter (GNM). Check out this blog to see how necessary this move is: http://trendsinmenshealth.com/clinical-negligence/ Keep your fingers crossed that we can achieve this outcome.

    July 20, 2017 Reply
  5. Roger Kirby Professor of Urology

    Latest news: Honey Rose, the optometrist convicted of gross negligence manslaughter (GNM) for failing to recognise papilloedema in a child, has had her conviction quashed by Lord Leveson, the same law lord who overturned David Sellu’s GNM conviction http://www.bbc.co.uk/news/uk-england-suffolk-40776091
    Sanity is beginning to prevail!

    July 31, 2017 Reply
  6. Roger Kirby Professor of Urology

    Latest news: Honey Rose, the optometrist convicted of gross negligence manslaughter (GNM) for failing to recognise papilloedema in a child, has had her conviction quashed by Lord Leveson, the same law lord who overturned David Sellu’s GNM conviction http://www.bbc.co.uk/news/uk-england-suffolk-40776091
    Sanity is beginning to prevail!

    July 31, 2017 Reply
  7. Roger Kirby Professor of Urology

    Sentencing Council Consultation on Sentencing Guidelines for Manslaughter

    Introduction
    We are a group of doctors concerned that patients may be made less safe by the prosecution of healthcare professionals for acts of medical negligence, and by the imposition of substantial prison terms to punish them. We recognize that your consultation is concerned only with punishment. We consider only those questions in the consultation relevant to manslaughter by gross negligence.

    Q9. Do you agree with the proposed approach to the assessment of culpability?
    We do not agree.

    Please give reasons where you do not agree.
    Three of the criteria for high culpability will often apply to those who care for seriously ill patients: the offender persisted in the negligent conduct in the face of the obvious suffering of the deceased; the offender was clearly aware of the risk of death arising from the offender’s negligent conduct; and, for more senior doctors, nurses, and other members of healthcare teams, the offender was in a dominant role if acting with others.

    We of course agree that the loss of life is harm of the utmost seriousness; but we note that in medical practice there are circumstances where the clinical decisions on intervention can be finely balanced, since both intervention and failure to intervene can result in loss of life.

    Q10. Are there any aggravating or mitigating factors that should be removed or added?
    We believe that in the context of healthcare, ‘systems factors’ should be considered.

    There is no discussion of ‘recklessness.’ We support the idea that healthcare professionals who are reckless, for example, a surgeon who operates when she knows she is unfit through alcohol, should be punished. Most medical errors, whether they are judged to be gross or not, are unrelated to reckless acts.

    Please give reasons.
    We believe on the basis of research into human error by Professor James Reason and others that the context in which healthcare professionals work is crucially important in determining both whether an error occurs, and whether it is detected before harm occurs. The factors that make systems prone to error include: the requirement to carry out tasks without adequate training; the need to perform complex tasks; ambiguously specified tasks; competing tasks; distraction; and fatigue. If these factors are excluded from consideration, defendants will suffer for the failings of others.

    Q11. Do you have any comments on the sentence ranges and starting points?
    Doctors have, until the conviction and sentencing of Mr Garg, generally received suspended sentences or short prison sentences. Mr Garg, who had altered clinical records and who pleaded guilty, received a two-year sentence. Sentences for healthcare professionals have not, as far as we are aware, exceeded 2½ years in recent times. It therefore appears unreasonable to set the starting point at two years, or the higher bound of the range at four years.

    Q25. Do you have any other general comments that you wish to make about the draft guidelines?
    We understand that the draft guidelines have been based on information on sentences recorded in the past. Given the special circumstances in which healthcare is delivered, it would help to have data specifically relating to healthcare professionals. We have up to now been unable to obtain data on investigation, charge, conviction, or sentencing of doctors or other healthcare professionals from the Crown Prosecution Service, and wonder whether the Sentencing Council has had access to this or related information? We also wonder I wonder whether it’s worth examining the purpose of prosecution in healthcare. Is the purpose to punish individuals? If it is then this seems to enforce a blame culture for mistakes, which will inevitably lead to a worsening culture for safety. Should mistakes be punished? Or is is to protect the public? If the result is defensive medicine, then this purpose would not be achieved. Is it to deter others? We all strive not to make mistakes, so how is this being achieved? How forseeable was the error? Presumably, at the time rather than in hindsight, it was not forseeable. Otherwise different action would probably have been taken. These should all be considerations for CPS when deciding whether or not to bring the prosecution.
    Given the failure rate of securing conviction in GNM healthcare, is it ever reasonable to expect a reasonable chance of success on the balance of probability?

    Professor Robin Ferner
    Dr Jenny Vaughan
    Professor Roger Kirby
    Dr Paul Sigston
    Dr David Nicholl

    We all have an interest (along with the rest of healthcare!) in how GNM law is enacted and how healthcare workers are sentenced if found guilty. We all have an abiding interest in patient safety and the duty of candour how criminalising healthcare may affect this in a negative way. We do not believe healthcare workers are a special case and should be above the law. We do believe healthcare is very complex and some recent prosecutions and sentencing decisions may not have recognised that complexity.

    November 2, 2017 Reply

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