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20 Jan 2016

Nick Barnard article re sentencing in medical gross negligence manslaughter featured in Criminal Law & Justice Weekly

Culpability and mitigation – sentencing in medical gross negligence manslaughter

What is the proper way to approach sentencing for an offence where the offender did not intend the consequences of his or her actions? Not only that, but that those consequences were not the foreseeable outcome of reckless conduct; rather, they were involuntary, unforeseen and in fact stemmed from an otherwise legal act.

This is the central issue of sentencing for gross negligence manslaughter. In brief, the offence requires that the defendant breached a duty of care owed by him or her to the deceased, and that this breach of duty caused (or significantly contributed to) the death. Furthermore, that the breach of that duty of care was (in the judgment of a jury) so severe that it should be characterised as criminal.

Assuming the jury is satisfied that the negligence amounts to a criminal act, it falls to the judge to determine the appropriate sentence commensurate with the seriousness of the offence. In applying the formula prescribed by s143(1) Criminal Justice Act 2003 (‘the court must consider the offender’s culpability in committing the offence and any harm which the offence cause, was intended to cause or might foreseeably have caused’) two boxes are already ticked for the judge; the harm caused (i.e. death) and the harm intended to be caused (i.e. none).

The focus on the sentencing therefore falls on the offender’s culpability, which will be a difficult task in any instance of gross negligence manslaughter (after all, the extreme consequences of the act or omission were by definition unintended).  However, it is particularly problematic in the medical context, where the defendant will have gone to work  that day with the intention of improving health, and perhaps even saving lives. How does one balance this intention with a sentence sufficient to reflect the gravity of a life lost unnecessarily?

In the case of Dr Hadiza Bawa-Garba and Staff Nurse Isabel Amaro, it was a particularly young and vulnerable life. In February 2011, six-year old Jack Adcock was admitted to Leicester Royal Infirmary with diarrhoea, vomiting and breathlessness. On admission at around 10am, he was diagnosed with gastroenteritis by Dr Bawa Garba and was left in the care of Staff Nurse Amaro and others. He in fact had an infection which developed into sepsis and at around 7.45pm deteriorated rapidly. Despite resuscitation efforts, he died around an hour and a half later. Subsequent investigations identified a number of failings had occurred, including a failure to prescribe antibiotics, act on test results, monitor fluid levels and vital signs, reassess his condition or refer to a senior consultant. Ultimately, Jack should have been referred to the paediatric intensive care ward.

On 2 November 2015, Staff Nurse Amaro was convicted of gross negligence manslaughter at Nottingham Crown Court by a unanimous verdict. Two days later, Dr Bawa Garba was also convicted on a 10-2 majority verdict. On 14 December 2015, Mr Justice Nicol sentenced both to a two year prison sentence, suspended for two years.

In doing so, he was faced with an unenviable real-world dilemma. On the one hand, a young boy had died due to a series of preventable mistakes, and a jury had considered those mistakes to be so severe that a criminal penalty was necessary. On the other hand, Mr Justice Nicol acknowledged that the mistakes were not borne out of laziness, or other selfish reasons, but a failure to properly prioritise care. Furthermore, he acknowledged that Dr Bawa-Garba was the sole carer for her autistic son and that the Staff Nurse Amaro suffered from psychiatric problems which would be exacerbated in prison.

Mr Justice Nicol would be forgiven for showing little regard to the general principles of sentencing.  It is hard to deter unintended consequences, or to plan for the rehabilitation of those who have set them in motion. No appropriate reparations can be made to Jack Adcock’s family and considering that neither will work in medicine again, the risk of reoffending is essentially nil. Of the aggravating factors identified in the CPS Sentencing Manual for gross negligence manslaughter, only one can properly be said to apply in this case (‘an awareness of a significant risk of death or really serious injury’) and even then it must be reflected that this is a risk which doctors and nurses (particularly in hospitals) work with every day.

It therefore fell to the judge to decide how severe the punishment should be in all the circumstances, and to reflect carefully on who would bear the brunt of that punishment. As pleaded in mitigation on Dr Bawa Garba’s behalf, it would have been a sad irony if her son had also had to suffer as a result of his mother’s mistakes. The appropriate course, in Mr Justice Nicol’s view, was to suspend the custodial sentences.

The suspension of the sentences represents a departure from the recent trend in medical manslaughter cases. Although the last three convictions (two in 2012, one in 2013) all received sentences of similar length (between 24 and 30 months) all three resulted in immediate custody. Having said this, prior to 2012, the last immediate custodial was in 2004, which perhaps only underlines how fact-specific sentencing in gross negligence manslaughter really is.

Overall, the number of prosecutions for medical manslaughter had been decreasing (the period 1998 – 2005 saw 23 trials and eight convictions, whereas 2006 – 2012 saw eight trials and three convictions[1]) but an increase in the overall conviction rate for those prosecutions (from 30% in the ten years to 2006, up to 55% for 2006 – 2013[2]).

However, the 2012/13 convictions and the six professionals charged in the last 12 months (including three in relation to Jack Adcock; a third nurse having been acquitted at trial) suggest that the tide may be turning again. This fits with an increasing focus on criminal action against healthcare providers who fall significantly short of their responsibilities, particularly in the wake of the Mid-Staffs and Winterbourne View scandals.

As of April 2015, medical and other care professionals face the prospect of being prosecuted for wilful neglect, a new offence requiring similar levels of negligence but not fatal consequences. 2016 will see the first gross negligence manslaughter prosecution of an optometrist for an alleged failure to identify during a routine examination a swelling of the optic nerve in an eight year old boy who died approximately five months later. It will also see the first prosecution of an NHS Trust for corporate manslaughter (of which more later).

Much was made in media reports of the fact that Dr Bawa Garba mistakenly ordered that attempts to resuscitate Jack be stopped, having confused him with another patient. Despite the dramatic connotations, the medical evidence indicated that by this point it was too late to save Jack and this particular mistake had no material impact on the outcome (in particular, the treatment was quickly resumed when the error was noticed). However, there had nonetheless been a series of mistakes and missed opportunities during Jack’s admission which would have given him a good chance of survival.

This underlines one of the most difficult issues in considering gross negligence manslaughter, particularly in the medical context. Homicides are usually thought of as sudden events (guns, knives, car crashes) committed by a single offender. Whilst there are examples of individual medical mistakes resulting in prosecutions (administering the wrong drug, or the correct dosage of a drug by incorrect means, for example), the alleged negligence will often have occurred over a period of hours or even days and may have involved several practitioners, as was the case here. The medical evidence needs to be carefully considered to ensure that the issues related to causation are laid out as clearly as possible (in particular, which breaches caused or significantly contributed to the death, and which did not), and then the jury carefully guided to decide whether those causative breaches reach the gross threshold.

Nonetheless, the error during resuscitation was cited as an example of the lack of care and attention paid by Dr Bawa Garba. In her evidence, Dr Bawa Garba explained that she had been at the end of a 12 hour shift with no break, and that this may have contributed to the mistake. This highlights another of the factors which sets clinical cases aside from other gross negligence manslaughters. In other cases, there is often a choice for the defendant whether to set off on the path which leads to the unintended death. The unqualified or overworked tradesman or professional can turn down the job he or she cannot do safely. The tired driver can take the vehicle off the road. But how much choice does the doctor or nurse have when faced with a ward of unwell patients, each of whom may be in need of urgent care, but too few colleagues and resources to provide the attention required? Whistleblowing and intervention are the long-term solutions, but these are of little use at the sharp end of a long shift when your department becomes unexpectedly and unmanageably busy.

The question therefore turns to whether those providing the setting for medical care should also bear criminal responsibility when the overwhelming conditions result in professionals being unable to provide a reasonable standard of care.

This issue will be addressed in some detail in January 2016, as Maidstone and Tunbridge Wells NHS Trust becomes the first Trust to be tried for corporate manslaughter, in connection with the death of Frances Cappuccini following an emergency Caesarean at Tunbridge Wells Hospital in 2012. The consultant anaesthetist involved is also on trial for gross negligence manslaughter, whilst another anaesthetist is the subject of an international arrest warrant.

The resourcing and management of NHS resources (particularly the expansion of 7-day working and pay and conditions for junior doctors) have become a significant political issue since the 2015 election. Whatever the verdict on the individuals, if the Trust is convicted this will have significant implications for all corporate bodies with responsibility for healthcare. Amongst other things, it would be an acknowledgment that the medical staff had been put at risk of criminal prosecution due to organisational shortcomings.

[1] ‘More doctors charged with manslaughter are being convicted, shows analysis’ BMJ 2015;351:h4402

[2] Ibid. A separate study to 2012 showed a conviction rate of 38%.

This article is published in Criminal Law & Justice Weekly.

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