Betrayal of Trust in Medical Manslaughter

Introduction

The ultimate question for a jury trying a case of gross negligence ‘medical’ manslaughter is whether the doctor’s breach of duty was so serious that it is consequently a crime. ¹ If the judge cannot find adequate words to describe the egregious behaviour that must be proven to convict, then it follows that the jury cannot be adequately directed by that judge as to what behaviour constitutes the crime.

Equally, when faced with the decision as whether to lay the charge of gross negligence manslaughter in the first place, the Crown Prosecution Service (CPS) must assess whether there is sufficient evidence to provide a realistic prospect of conviction, which requires consideration of whether a jury is more likely than not to convict. ² If the CPS, sharing the judges’ dilemma, cannot identify what behaviour constitutes the crime (and cannot predict the likely verdict for the same reason), then their decision to charge is inevitably fallible.

In the medical context, gross negligence manslaughter makes into a crime substandard clinical behaviour which otherwise, as ‘negligence’, would only attract a civil sanction. These parallel criminal and civil wrongs are distinguished by the scale of the substandard behaviour, when conjoined with the death of the patient. The English common law has struggled for nearly 200 years properly to articulate the quintessential ingredient of substandard care which, when associated with patient fatality, marks it out as deserving criminal conviction. Following two centuries of demonstrable uncertainty, the elements of this crime and their accurate description may have been settled. If not, then an alternative approach for charging doctors involved in a potentially unlawful killing should be considered.

Currently, the law requires proof of ‘truly, exceptionally bad’ behaviour by the doctor for the crime of gross negligence manslaughter to be established. Though the product of centuries of judicial and academic discussion, this test remains difficult to understand. This article argues that the present test is unfit for purpose. It should be replaced by referring not to a standard of negligence but to a breach of the doctor’s fiduciary duty—a betrayal of trust contrary to the best interests of the patient. This change would provide an intuitive concept, easier for both juries and prosecutors to understand.

Gross Negligence Manslaughter—The Present State of the Law

The five elements that must be proved to establish gross negligence manslaughter were most recently stated by Sir Brian Leveson P in R v Rose ³ :

(a) the defendant owed an existing duty of care to the victim;

These elements almost mirror the seminal formulation given by Lord Mackay of Clashfern LC in the leading 1995 case of R v Adomako ⁴ :

On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. 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.

Secondly, in (e), Rose further sought to define the meaning of ‘gross negligence’ with the following: ‘the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction’.

This article seeks to provide an alternative to this element of the offence. As argued below, far from adding clarity to the already vague notion of ‘gross’ negligence, the definition in Rose is also ostensibly circular: in order for the crime to have been committed, the circumstances of the breach must be so bad as to merit criminal sanction.

Historical Overview of the Law

To understand the problem of circularity, and thus why our proposed test is favourable, it is instructive to consider its genesis in the case law. ⁶

In the 1807 appeal of Williamson, ⁷ the judge directed the jury that to find guilt in manslaughter ‘…the prisoner must have been guilty of…the grossest ignorance or the most criminal inattention’. The circularity was created by the judge directing the jury that Williamson should be found guilty of a crime if he had committed a crime. He gave no further advice as how to recognise whether a crime had been committed, merely that the ‘inattention’ (negligence) had to be ‘criminal’.

One hundred years after the direction in Williamson, the Lord Chief Justice in R v Bateman ⁸ made it clear that the jury’s only task was to determine whether the lapse in the standard of care amounted to a crime. In a judgement still referred to R v Rudling, ⁹ he continued: ¹⁰

In explaining to juries the test which they should apply to determine whether the degree of negligence equated to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

Having wavered between tests of recklessness and gross negligence in the early 20th century, ¹² the modern formulation was defined in Adomako, noted above. Arguably, this did little to remedy the apparent circularity in previous directions: ‘the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him […] was such that it should be judged criminal’. ¹³

R v Misra & Others ¹⁴ may have been the first time a judge used the phrase ‘truly exceptionally bad’ to illustrate to the jury the degree of misconduct necessary to cross the threshold of criminal behaviour. In a further series of appeals, the circularity appears to have become entrenched. In R v Rudling, the Court relied on the original Adomako formulation, requiring that the ‘conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission’. ¹⁵ In R v Bawa-Garba, the use of the phrase ‘truly, exceptionally bad’ was cited with approval. ¹⁶ In R v Cornish, the direction was: ‘Any such breach falling so far below the standards expected…that was so flagrant and so atrocious, that it would consequently amount to a crime’. ¹⁷ In R v Sellu, ¹⁸ again ‘truly, exceptionally bad’ was the touchstone.

An Alternative Formulation—The Betrayal of Trust

Although there have been substantial developments between Williamson in 1807 and Rose in 2017, circularity plainly remains. The use of ‘truly exceptional’ may simply be another example of the addition of further ‘vituperative epithets’ that Lord Cranworth found so unsatisfactory in 1843. After all, how bad is truly, exceptionally bad? So bad that it is criminal? Given these difficulties, we submit that it is now time to consider a new means of approaching the matter.

To avoid accusations of circularity and accompanying uncertainty, there is an alternative to articulating the offence of gross negligence manslaughter in terms of the breach of a duty of care. That is to do so upon the basis of a betrayal of trust, based on the equitable concept of the fiduciary relationship between the doctor and the patient. ¹⁹

The new formulation of the offence would share similarities to the formulation in Rose, but with key differences:

(a) the defendant owed a fiduciary duty to the victim;

To understand the proposed test, it is necessary to consider the application of both a fiduciary relationship and the betrayal of trust to this context.

The Case for Change: Solutions and Advantages

Why change the test at all? In this section of the article, we consider in more detail two major problems with the current test: first, the uncertainty arising from its circularity, and secondly, its inability to distinguish the personal failings of doctors and the systemic failings of the system. We argue that the proposed test overcomes both.

Uncertainty and Circularity

Without certainty in the law, an individual cannot know how to manage his or her behaviour to ensure compliance. If an individual is unable to tailor his conduct to avoid breach, then any breach would arguably be a retrospective application of the law: its meaning is only established at the point at which the individual is in breach. ⁴⁷ Our point of reference for its meaning is to look at the individual’s behaviour rather than the law itself. Laws that apply retrospectively are likely to violate Article 7(1) of the ECHR, ⁴⁸ which states:

No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

Furthermore, as Ben Fitzpatrick has pointed out, ‘[e]ffectively the jury is required not merely to make decisions of fact on the evidence, but also to evaluate the definition of the crime itself’. ⁵⁰ As finders of fact only, this is a task beyond their role.

The difficulty with circularity has been identified by the judiciary in the past. In Adomako itself, Lord Mackay acknowledged that the test set out in that case involved ‘an element of circularity’, though in his view it was not ‘fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal’. ⁵¹

This problem has led to it being argued on myriad occasions that the concept of gross negligence is elusive to the point of being unsustainable as a criminal offence. Oliver Quick described it as ‘incapable of clear and objective measurement…lacking sufficient certainty’ and asked for its abolition. ⁵² It has been pointed out that the vagueness of the present test is such that it makes it difficult to advise individuals on whether they would be criminally or civilly liable. ⁵³

The issue of certainty was at the heart of the appeal in Misra, where the Court of Appeal sought to rebut the suggestion of uncertainty. The Court, in attempting to provide an answer to the notional ‘legal advice test’ ⁵⁴ —that is, could a hypothetical citizen find out through legal advice whether his action would render him liable or not—stated of gross negligence manslaughter:

In our judgment the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako. They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter. ⁵⁵

However, despite the confident way that the judgment is phrased, it is hard to see how this comprehensively answers the question. Conversely, it merely repeats the heart of the problem: he would be liable for gross negligence manslaughter if the jury were satisfied that his negligence was gross. As Barsby and Ormerod point out, a doctor seeking to know how gross his negligent conduct would have to be in order to be convicted could only be told that the standard would be by reference to what the jury thought was criminal: the problem with the law as stated in Bateman remains. ⁵⁷

The use of the phrase ‘truly, exceptionally bad’, now a standard part of the element as demonstrated in Rose, seeks to elucidate further what ‘gross’ means. However, it is arguable that this simply adds further ‘vituperative epithets’ without being of any practical assistance. It is likely to beg the question—how bad is truly, exceptionally bad?

The betrayal of trust test brings necessary clarity to the question a jury would have to ask. As argued above, the answer is invariably intuitive, certainly more so than judging whether an act is truly, exceptionally bad. We submit that, for this reason, it would be easier for it to pass the notional legal advice test.

Moreover, there is precedent for its clarity found in the current criminal law. For example, the offence of fraud by abuse of position requires the jury to assess whether the alleged fraudster breached the position of trust held towards the victim. ⁵⁸ Now, in fact, a breach of trust is subtler than a betrayal; it follows that the betrayal test should be as easy to understand as a breach, if not more so. It becomes a binary question for the jury’s decision.

Personal Versus Systemic Failings

A second, major problem with the present test is that it fails to distinguish sufficiently between factors that make the doctor culpable and factors that are outside of the doctor’s culpability but may nevertheless be causative in the resulting death. The latter may include concrete considerations such as the availability of support staff, medicines, instruments and infrastructure, or less tangible issues such as the poor training of the individual doctor (for which they may not be culpable), or whether, for example, they are prematurely elevated to a role beyond their skill. As a result, a doctor may be found guilty of manslaughter without proper regard for the fact that he or she was acting in a sub-optimum environment or under difficult circumstances. Although those external factors may be later proffered as mitigation, arguably they should have a more central role in the decision of guilt.

Adomako suggests that all circumstances should be considered when deciding whether the negligent act was gross. ⁵⁹ However, it is far from clear that they form a sufficiently central factor in the current test. Elizabeth Stuart-Cole argues that situational factors, such as a being compelled to work in an under-resourced environment, are not relevant on the basis of the current law. ⁶⁰

The shortcoming can be elucidated by reference to the case of Dr Bawa-Garba. ⁶¹ Dr Bawa Garba was a junior doctor specialising in paediatrics, who had returned to work in 2011 following 14-month maternity leave. In February 2011, a boy under her care died following, inter alia, her failure to recognise from blood tests that he was suffering streptococcal septic shock. She had diagnosed him with gastroenteritis. As part of the defence case, it was adduced that there were a number of systemic failings that were outside Dr Bawa-Garba’s control: problems with the hospital’s computer system meant that many hours elapsed before she received the blood tests; she was without a senior house officer; there was a shortage of permanent nurses to support her, and the replacement agency nurses failed to monitor the patient properly, failed to communicate his symptoms to Dr Bawa-Garba and switched off the boy’s oxygen without telling her. She pointed out that she was heavily involved in treating other patients at the time and had been working for nearly 13 hours straight.

She was convicted in 2015 following a direction that the jury must be satisfied that her behaviour was truly, exceptionally bad. ⁶² The jury were directed that systemic failings of the hospital were only ever of peripheral relevance to the guilt or absence of guilt. ⁶³ Later, during sentencing remarks, Mr Justice Nicol noted that there was a limit to how far systemic issues could be explored in the trial. ⁶⁴

This reflects the present state of the law. However, intuitively, it is wrong to seek to determine the culpability arising from an individual’s act without viewing it in its wider context. Why was it not important that, for example, the nurses who were there to assist her failed to do so in a number of ways? Had the blood tests been provided promptly, would the outcome have been different?

The betrayal of trust test provides a more holistic approach. It allows the jury to consider all matters relevant to whether the conduct amounts to a betrayal. In Dr Bawa-Garba’s case, a jury may have concluded that there were a whole host of reasons for the patient’s death, but that in difficult circumstances she had not betrayed the trust of the boy.

By way of a further example, consider the events surrounding the German doctor Daniel Ubani in Cambridgeshire in 2008. Dr Ubani accidentally killed his patient by giving him 10 times the recommended dose of diamorphine. He was on his first shift in the UK as a locum, and he had had three hours sleep before starting it. He claimed to have been under ‘tremendous stress’ and had confused diamorphine with another drug, as the former was not generally used in German hospitals. His English skills were known by the medical authorities to be poor as that was the basis for the rejection of his application to the Primary Care Trust. ⁶⁵

Was his behaviour truly, exceptionally bad on the gradient of medicine based on the reasonable practitioner? Yes. Should he have been civilly liable for clinical negligence? Yes. In all the circumstances, should he have been found guilty of a criminal offence? Well that is less clear. This was a doctor working outside of his experience field, in an unfamiliar environment, with poor English language skills and in a poor physical state. The question that leaps to the mind of many may be why was he allowed to be working in the first place? As Brazier and Alghrani state in their discussion of that case, ‘Any “system” that permitted an exhausted doctor with poor English and a lack of familiarity with medical practice in the UK to treat patients looks defective’. ⁶⁶ It may well be that the system in which he was allowed to work played a large part in the death of the patient. However, could it really be said that Dr Ubani betrayed the trust of his patient? It would be for a jury to decide that question to allow for a just result.

Does the Proposed Test Impose Too High a Threshold?

It could be argued in response that a ‘betrayal of trust’ test imposes too high a threshold for an offence of unlawful killing. For example, it would potentially mean that a doctor could escape criminal liability no matter how incompetent they were, as long as they did not betray the trust of the patient, acted in their best interests and did so in good faith.

There are two counters to this argument. First, it is important to bear in mind that a conviction for involuntary manslaughter is a criminal matter attracting a criminal penalty. This often means substantial terms of imprisonment. For that reason, it is right that only a transgression of the utmost gravity should result in conviction. An honest mistake made in good faith may well not be sufficient for criminal liability, though will almost certainly be sufficient for civil liability and compensation.

To draw an analogy, a solicitor who is negligent in conducting his client’s financial affairs may be liable in the law of tort but will not have necessarily breached his fiduciary duty ⁶⁷ nor committed a criminal offence. However, a breach of fiduciary duty, being a breach of their position of trust surrounding those financial affairs, may render them guilty of the criminal offence of, for example, fraud by abuse of position of trust. ⁶⁸

Secondly, and moreover, there is real merit in seeking to limit as much as possible the scope of prosecutions for manslaughter in the medical context. Although a civil claim for clinical negligence is a daunting and uncomfortable prospect for any doctor, prosecution for unlawful killing, or even simple arrest, is catastrophic both mentally and reputationally. Medical professionals are in a distinct position to other professions because their work necessarily deals with life and death, and therefore fatality is far more commonplace. Because of this, their errors are more likely to attract a higher degree or publicity and vitriol than errors by other professions. ⁶⁹ It has been argued that proceeding against doctors in criminal law will only have a negative impact on the profession if it is used to punish errors rather than more serious breaches. ⁷⁰ If this is correct, then a test that makes prosecution less likely is in the interests of both the medical profession and society as a whole.

In addition, there are strong reasons to raise the bar, given that medical professionals are often compelled to undertake dangerous or life-threatening tasks as part of their duty. As Brazier and Alghrani point out, the surgeon cannot refuse to operate because surgery is dangerous. ⁷¹ This puts them in a practically unique position. The vast majority of other individuals who take on a duty of care do it for commercial reasons. For example, the pilot is not bound by ethics to fly his passengers, whereas the surgeon may well be bound to perform a dangerous operation, conforming with the requirement to act in accordance with the patient’s interests in cure. ⁷² For that reason, it is arguable that a further degree of latitude should be provided to them when they fall into error.

The report of the rapid policy review of gross negligence manslaughter in healthcare led by Professor Williams ⁷³ notes a marked decline in conviction rates in the most recent cases. Since 2013, six convictions resulted from 15 prosecutions, compared with 17 convictions from 32 prosecutions between 1994 and 2013. Although the conviction rate may marginally have diminished, the average annual number of prosecutions and convictions remains constant over the last 25 years at one per year. Furthermore, for the clinicians who have endured a legal process that ultimately ends in acquittal, the (failed) prosecution is likely to have had a profound effect on their lives, family and career. The ‘falling’ conviction rate may seem an otiose point in these circumstances, a pyrrhic victory.

Could the Offence Be Extended to Other Professionals?

The test could feasibly work outside of the medical realm. However, we submit that it is most appropriately applied to doctors due to the practically unique obligation of loyalty and responsibility they owe to their patient.

This raises the question of whether a separate offence of ‘medical manslaughter’ should be created, either by common law or by Parliament. Many argue that it would be inappropriate to create a new offence, as this would be another example of the overcriminalisation that appears to be taking over society. ⁷⁴ Others argue that legislative reform is desperately needed. ⁷⁵ Karl Laird points out that the Court of Appeal’s recent consideration of gross negligence manslaughter has looked at it within the medical context alone, despite it applying regardless of profession or vocation. ⁷⁶ Although this may simply be a coincidence, the Court of Appeal’s focus on the crime within the medical realm underlines the importance of the meaning of the offence to medical professionals. Given the unique position of medical professionals discussed above, it may well be that a separate, tailored offence would be appropriate. It is arguable that the development of the law is such that one has effectively already been created. However, a full examination of that issue is beyond the scope of this article.

Conclusion

The legal basis for prosecution and conviction for gross negligence manslaughter has arguably failed to provide prosecutors, judges and juries with sufficient certainty as to what constitutes the offence in the 19th or 20th centuries.

It remains to be seen whether ‘revised guidance’ or a plea for clearer understanding of the elements of the offence of gross negligence manslaughter as set out in the rapid policy review will be a sufficient remedy to allay doctors’ fears, or whether an entirely new approach is required. If the latter, then founding the charge on the basis of a betrayal of trust between the patient and doctor may represent a concept that a jury can recognise and empathise with. If a jury can understand a binary decision of betrayal versus non-betrayal, then the judge’s task of direction will be simplified, less ambiguous, providing certainty. At the same time, the CPS may find it easier to identify the rare cases of betrayal of trust that merit prosecution.