The Court of Appeal decision in R v Honey Maria Rose [2017] EWCA Crim 1168 will have brought a sigh of relief to all clinicians worrying about the consequences of an error on their part which has fatal consequences for a patient.  An optometrist was convicted of gross negligence manslaughter of a young boy when she failed properly (and in breach of a statutory duty) to examine the internal structure of his eyes in a routine examination, and he died as a consequence of an abnormality on the optic nerve which she had missed.  It was agreed evidence that had the optometrist referred the boy for medical attention, his life would have been saved. She was sentenced to 2 years’ imprisonment suspended for 2 years.

The optometrist had accepted that the failure to examine the back of the eye without good reason was a breach of her duty of care and experts agreed that a competent optometrist would have known the significance of swelling of the optic nerve. The judge directed the jury that they should convict if sure that the risk of death would have been obvious to a reasonably competent optometrist with the knowledge that the defendant would have had ‘if she had not acted in breach of her duty to investigate the position’, and if her conduct was so bad as to amount to a criminal omission.

The Court of Appeal allowed the optometrist’s appeal against conviction, emphasising that the test to be applied is objective and prospective.  Therefore in order to establish gross negligence manslaughter there must be a serious and obvious risk of death at the time of the breach, and so the test required the putative knowledge of the reasonably prudent optometrist in the clinician’s position at that time – therefore the question is whether at the moment of the breach of duty the clinician ought reasonably to have foreseen an obvious and serious risk of death.  In this case there was no ‘serious and obvious risk of death’ at the time of the breach of duty although there was the possibility that signs of potentially life-threatening disease or abnormality might be missed.

Gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission.

This decision emphasises the ingredients necessary to establish gross negligence manslaughter:

For a person to be guilty of an offence of manslaughter by gross negligence the prosecution must prove:

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

(b) the defendant negligently breached that duty of care;

(c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death; and

(i) that risk must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty

(ii) a mere possibility that an assessment might reveal something life-threatening is not the same as an ‘obvious risk of death’: an ‘obvious risk’ is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.

(d) the breach of that duty caused the death of the victim;

(e) 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.

In assessing either the foreseeability of risk ((c) above) or the grossness of the conduct in question ((d) above), the court is not entitled to take into account information which would, could or should have been available to the defendant following the breach of duty in question. The test is objective and prospective.

If the test applied by the trial judge and on which Ms Rose was convicted stood as the appropriate test, then negligent omissions in carrying out routine eye tests, blood tests and other such tests which in fact would have revealed fatal conditions could amount to gross negligence manslaughter notwithstanding that the circumstances were such that it was not reasonably foreseeable that such failures would carry an obvious and serious risk of death.  Instead the decision emphasises that the situation must be assessed for such an obvious and serious risk of death on the basis of an objective appraisal of the risks at the time the failure occurred.

It was on that basis that the GP in R v Rudling [2016] EWCA Crim 741 was entitled to have the case against him for manslaughter dismissed.  He had advised the mother of a sick child on the phone on a Friday evening to bring him into the surgery after the weekend, but the child died in the early hours of the Saturday.  Expert evidence was that that the GP needed a face-to-face assessment of the child in order to fully assess the risk.  Therefore there was no obvious and serious risk of death at the time of the Friday advice.  As a result the charge of manslaughter, however negligent the GP, could not be made out.

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