Last year’s custodial sentence for surgeon David Sellu, following a verdict of gross negligence manslaughter, raised concerns within the profession. Former Casebook Editor-in-chief Dr Stephanie Bown met with Professor Norman Williams, President of the Royal College of Surgeons, to discuss what the ruling means for healthcare professionals.

Medical manslaughter – the background

The law, as it stands, was stated in the case of Adomako (1995) 1 AC 171. In this case the defendant, an anaesthetist, failed to notice for six minutes during an operation that the oxygen supply to the patient had become disconnected from the ventilator. As a result the patient suffered a cardiac arrest and died. The House of Lords affirmed the conviction, and the elements of the offence were specified as:

• The defendant owed the victim a duty of care
• The defendant breached that duty
• The breach caused (or significantly contributed to) the victim’s death
• The breach was grossly negligent. The key point is that it is a matter for the jury to determine whether the breach was grossly negligent.

In summing up, Lord MacKay stated: “The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal…The essence of the matter…is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act of omission.”

The law as it stands has been criticised on a number of counts, but particularly because the reach of the criminal law in this area is left to be determined by the jury. When parliament enacted the Coroners and Justice Act 2009, no change was made to involuntary manslaughter; the reforms being confined to voluntary manslaughter. Observers at the time thought it unlikely any further reform of homicide would take place in the foreseeable future.

Medical manslaughter cases fall into the area of involuntary manslaughter. In English law, involuntary manslaughter takes two forms – unlawful act manslaughter and gross negligence manslaughter. It is the latter that gives rise to charges against healthcare practitioners.

Doctors in the dock In 2006, a paper1 published in the Journal of the Royal Society of Medicine by Ferner and McDowell looked at the number of doctors charged with medical manslaughter between 1795 and 2005. The review found that 85 doctors had been charged with manslaughter in the UK since 1795, 38 of them since 1990. Of these 60 were acquitted, compared to 22 recorded convictions and three guilty pleas.

Other widely-reported cases include:

• Dr Freda Mulhem (2003) - Wayne Jowett, 18, was in remission from acute lymphoblastic leukaemia, and had entered the maintenance phase of his treatment. In January 2001 he was inadvertently given vincristine intrathecally. The sequence of events leading to this were complex and involved multiple errors and breaches of protocol by a number of staff. An analysis of the circumstances can be found online.2 Despite this, the registrar, Dr Mulhem, was charged and convicted of manslaughter in 2003. He was sentenced to eight months, and a further ten months on unrelated assault charges. As he had already served 11 months on remand, he was released from custody. The GMC subsequently suspended him for 12 months.
• Mr Steven Walker (2004) - Mr Steven Walker was found guilty in 2004, after changing his plea to guilty, of the manslaughter of a female patient who suffered catastrophic blood loss during an operation to remove a liver tumour in 1995. He admitted he should have stopped the operation after finding the tumour was double the expected size and close to key blood vessels. Mr Walker received a 21-month suspended jail sentence and was erased from the medical register in 2005. In November 2013 the case again hit the headlines when Mr Walker applied for restoration to the register.3 Following adverse opinion, he withdrew his application.
• Dr Michael Stevenson (2007) - A 54-year-old GP, Dr Stevenson admitted manslaughter after a patient died in 2005 when he injected six times the required dose of diamorphine for migraine. He made the same error on his next visit, but the second patient survived. He received a suspended sentence of 15 months in 2007. The GMC erased him from the register in September 2009.
• Dr Bala Kovvali (2013) - Dr Kovvali diagnosed depression in a middle-aged patient who died shortly afterwards from diabetic ketoacidosis. He pleaded guilty to manslaughter and received a two-and-a-half year custodial sentence. An appeal against the length of sentence was unsuccessful, and he was subsequently erased from the medical register.
• Mr David Sellu (2013) - This recent case resulted in a custodial sentence of two and a half years. The case involved a patient admitted to a private unit for a knee replacement. Postoperatively the patient developed abdominal symptoms and Mr Sellu was asked to review the patient. The patient subsequently died following a laparotomy, and it was alleged that there had been an inappropriate delay in the diagnosis and treatment of a perforated bowel. The experts for the prosecution and the defence disagreed over whether Mr Sellu’s actions were reasonable in the circumstances. The conclusion was that there was a lack of urgency in the investigation and treatment of the patient.

Case study: Mr David Sellu

The custodial sentence imposed on Mr Sellu has caused surprise and consternation among the medical profession. As President of the Royal College of Surgeons, Professor Norman Williams has been uniquely placed to hear the concerns of Mr Sellu’s wider surgical fraternity.

On the defensive

Although one can reasonably observe that the David Sellu case simply reflects the times in which we live – and more specifically the level of expectations patients have of us – the consequences mean that there is a real risk for doctors to practise defensive medicine. This is, of course, the pursuit of unnecessary investigations – the ordering of tests, treatments, etc, that help protect the doctor rather than to further the patient’s diagnosis.

Dr David Studdert identified two types of defensive medicine:

• Assurance behaviour (positive defensive medicine) – providing services of no medical value with the aim of reducing adverse outcomes, or persuading the legal system that the standard of care was met, eg, ordering tests, referring patients, increased follow up, prescribing unnecessary drugs.
• Avoidance behaviour (negative defensive medicine) – reflects doctors’ attempts to distance themselves from sources of legal risk, eg, forgoing invasive procedures, removing high-risk patients from lists.

Defensive medicine can make your practice more risky. Unnecessary treatment – particularly invasive procedures – could actually increase the risk of litigation. Some tests have their own inherent risks and doctors could potentially be criticised for ordering investigations that are not in patients’ best interests (eg, if the risks associated with the procedures outweigh any potential benefit to the patient).

"I suppose patients have always expected very high standards but they also had a high level of trust in us and that trust has been eroded in recent years, with the problems with Mid Staffs. We have to understand that"

Professor Williams says: “I suppose patients have always expected very high standards but they also had a high level of trust in us and that trust has been eroded in recent years, with the problems with Mid Staffs. We have to understand that. Yes, we can bridle, it’s unfair, but that’s not the point here; I think we have to accept that. Therefore we have to be meticulous in exactly what we do and also we have to record everything very carefully.”

Protecting yourself

Professor Williams sees the practical implications of the Sellu ruling as reiterations of long-established advice. He says: "I think doctors have to ensure that they write everything down that relates to a consultation, such as management plans, etc. It’s no good relying on verbal instructions, so you have to be very clear – and handwriting has to be legible.

"You have to be candid with patients and tell them what you are planning to do; informed consent should mean informed consent – you must discuss very clearly the possible pros and cons of any procedure you’re about to embark on. You must make sure that the patient understands that and talks back to you to confirm they have been properly informed, and you need to judge the capacity of the patient to understand. It also goes without saying that you have to be compassionate and caring."

If things go wrong

Of course, adverse events are inevitable in medicine. Openness and effective communication in the aftermath is essential – not only is it the right thing to do, but it can be a pivotal factor in determining whether a patient makes a claim for compensation. Professor Williams says: “First of all in any adverse event, we all have a professional duty of candour and if anything does go wrong you have to apologise, and it should be a sincere apology, not just to get you out of trouble. This should be accompanied by an explanation of what has gone wrong, and why, and how it has led to harm and what you are going to do about it. An apology doesn’t mean you are liable.”

Many doctors support the concept of open disclosure but have personal concerns that in responding to a patient, they may inadvertently expose themselves to further criticism or legal action – but it must be remembered that an apology is not an admission of liability. MPS has long supported a position of open communication and our advice to members is to be open when things go wrong.

This openness extends to reports to the coroner upon a patient’s death. It is essential that your MDO looks at any such report before it goes anywhere else – in addition, please see the MPS Reporting Deaths to the Coroner factsheet.

Conclusion

Looking back over many of the cases involving manslaughter convictions for doctors, some common themes emerge.

They often contain serious errors by parties other than the accused; there are associated system errors – sometimes multiple; and the cases are sometimes complicated by associated factors, such as attempts to conceal or alter medical records. Be meticulous in your note-keeping, and always be honest and open about the facts.  

If an incident is followed by a criminal investigation, any account of the incident will be scrutinised and challenged – with any inconsistencies leaving a doctor extremely vulnerable. MPS members involved in the care of a patient who dies should consider making immediate contact with us, to ensure expert medicolegal advice is available as soon as possible.

Be meticulous in your note-keeping, and always be honest and open about the facts

Most importantly, in any case where there serious concerns around the sequence of events, or an indication of a criminal investigation or inquiry, make sure you take professional medicolegal advice before taking any other steps.

What lies ahead

A change in the law on gross negligence manslaughter is highly unlikely in the current climate. The Law Commission has reviewed the law twice, with the most recent review not recommending any change.

The Coroners and Justice Act 2009, which was the most recent review of the law, left the law on gross negligence manslaughter unchanged. Changes to some other aspects of cases might gain more traction, such as pushing for a specific offence of medical manslaughter, with a more appropriate definition. How the law will evolve in relation to gross negligence manslaughter in the future is uncertain, but MPS will continue to monitor events – and the potential impact on the medical profession – closely.

Words: Gareth Gillespie

References

1. Studdert D et al, Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment, JAMA (2005)
2. Ferner RE, McDowell SE, Doctors charged with manslaughter in the course of medical practice, 1795–2005: a literature review, J R Soc Med 99: 309-314 (2006)
3. www.smd.qmul.ac.uk/risk/yearfive/casestudies/wayne-jowett.html
4. www.bbc.co.uk/news/uk-england-lancashire-24913970