Raise legal bar to avoid criminalising good doctors for mistakes, warns MPS

The legal bar for convicting a medical professional of manslaughter in England and Wales should be raised 'to avoid good doctors being criminalised' for mistakes, medico-legal experts have warned in the wake of the Bawa-Garba case.

High court (Photo: iStock)
High court (Photo: iStock)

Responding to the government's rapid review into the way gross negligence manslaughter (GNM) laws are applied in medical cases the Medical Protection Society (MPS) has called for a move to align England and Wales with Scottish laws.

Laws in GNM cases in England and Wales should move closer to Scotland's 'culpable homicide' offence, in which charges can only be brought against a doctor if they are proven to have caused a patient harm through an act that was 'intentional, reckless or grossly careless', the MPS argued.

The MPS warned that the legal bar for convicting doctors in England and Wales was currently too low because it does not require intent or recklessness or a public interest test. As a result, good doctors are being 'criminalised for unintentional and often system-wide mistakes that are devastating for all involved', the medical defence organisation said.

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The call for reform comes after LMC leaders passed a vote of no confidence in the GMC, and called on the BMA to advise GPs to avoid written reflection as part of revalidation and appraisal.

Under Scotland's laws, the MPS said that just one prosecution has been brought, which resulted in an acquittal for the doctor involved. The MPS said it believed the way this system worked was 'better suited to determining the culpability of a doctor in a patient death and whether a prosecution is in the public interest'.

MPS medical director Dr Rob Hendry said: 'The public and medical profession would expect that extreme cases where there is intent to cause harm or a high degree of recklessness result in prosecution – and we support that.

System failures

'Most medical manslaughter cases are however more complex, involve systems failures, and are devastating for all concerned. Dr Bawa-Garba’s conviction is a case in point, and the strength of feeling on this and its implications for an open, learning culture in healthcare, has been palpable.

'A striking feature of the law in England and Wales is that intent, carelessness, or recklessness is not required for a conviction. The legal bar is too low and it is hard to see who benefits – a family has lost a loved one through tragic circumstances, a doctor may lose their career and face a prison sentence, the NHS has lost a valuable doctor, and fear of personal recrimination becomes increasingly embedded across healthcare.'

Dr Hendry said there was a 'real question of whether many cases in England and Wales would have made it to court in Scotland in the first place'.

GMC chief executive Charlie Massey issued an apology about the impact of the Bawa-Garba case in the wake of the LMC vote.

Mr Massey said: 'We are listening to what doctors are telling us about this case. We are sorry it has had such a significant impact on the profession, and that as a result, many doctors are feeling upset and unsure about their practice and their working environments. That was never our intention and we know that we have a huge amount to do to rebuild trust.' 

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