When clinical negligence becomes criminal manslaughter

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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The prospects of a clinical negligence claim and other 2016/17 claims data

The recent annual report of NHS Resolution for 2016/17 gives an interesting picture of the current clinical negligence litigation market.

The number of negligence claims received by the NHS in 2016/17 (£10,686) fell by 2.5%, the third year in a row when the number of claims had fallen.  This apparent fall will be in part at least a factor of the surge in claims in 2013/14 prior to the change in funding arrangements (as a result of which success fees in successful claims under conditional fee agreements ceased to be recoverable from the NHS).

Orthopaedic surgery gave rise to the largest number of claims for clinical negligence (13%) although inevitably in terms of value obstetrics came out on top, accounting for 10% of clinical claims and 50% of the total value of new claims reported (orthopaedics accounted for only 5%).  Following close behind orthopaedics came (in order) casualty/A&E, obstetrics, general surgery, gynaecology, general medicine, urology, radiology, psychiatry/mental health and finally ophthalmology, although unspecified ‘others’ account for 34% of all received claims.

While total damages paid out during the year were just under £1.1 billion, a rise of 14% over the previous year, legal costs paid out to claimant lawyers was £498 million, up 19% on the previous year.  In contrast the NHS spent £126 million on defendant lawyers but claims are dealt with in-house until proceedings are commenced so that the figures are not comparable.  The payments made are in relation to claims often first notified many years earlier.

In 2016/17, of the claims resolved that year, 67.8% of claims were resolved without formal court proceedings and a majority of these claims (55%) were resolved without payment of damages. Proceedings were commenced in just under one third of claims, and of these damages were paid in 80% of claims.  Only fewer than 1% of these claims went to a full trial and at trial 60% ended in judgment in favour of the NHS. Therefore of those claims (about one third) where early negotiations were unsuccessful in resolving them and it was necessary for the claimant to issue proceedings, the vast majority (80%) were settled successfully for the claimant without a trial, but when the remainder went to trial only about 40% were successful.

NHS Resolution (the former NHS Litigation Authority, renamed in April 2017) claims that it intends “to improve the resolution of claims, striking the balance of avoiding unnecessary court costs whilst continuing to defend claims where there was no negligence and challenging inappropriate legal costs where we encounter them.”   It is to be hoped that this will result in the earlier admission of liability in more cases which are not defendable, and a more cooperative approach to resolving the value of claims, and a more effective use of mediation.

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