When Will A Doctor's Negligent Acts Or Omissions Attract Criminal Liability?

We have advised recently on a number of incidents where it is alleged that a doctor was criminally responsible for the death of his/her patient. Rachel Morse examines the current law behind gross negligence manslaughter allegations and offers some practical points.

Imagine the scenario. It is the end of a busy shift in A&E when patient A is admitted. The attending doctor reaches a rapid conclusion that the patient is, sadly, in the process of dying and that intervention would be futile. The attending relatives are upset with that decision. Patient A dies shortly thereafter.

Two months later, the doctor receives a request from the police to attend a formal interview under caution. The family has obtained evidence to suggest that A's presentation was treatable, the decision not to treat was negligent, basic medical tests were not undertaken and the independent expert providing that evidence considers the doctor's decision fell below basic medical care.

While this picture is, thankfully, uncommon, it does arise from time to time. The effect on the individual doctor subjected to these investigations is catastrophic, they are faced with potential criminal charges which may result in a custodial sentence and would, in any event, endanger their registration and livelihood.

The law

The case of R v Adomako (1995) sets down the current test for gross negligence manslaughter. The defendant was a locum anaesthetist at an operation to correct a detached retina. He failed to notice that a tube had become dislodged during the course of the operation which resulted in the patient being deprived of oxygen. The patient suffered a cardiac arrest and died. The defendant was convicted of manslaughter and appealed to the House of Lords (as was) on the basis that gross negligence was not the correct test for involuntary manslaughter. The House of Lords dismissed his appeal and held that gross negligence is the correct test.

To be convicted of gross negligence manslaughter, a doctor must have breached a duty of care owed by them to the patient causing death and the breach of the standard of care must be 'so grossly negligent as to justify a criminal conviction'. The standard of care demanded of the doctor is the standard of the reasonably skilled and experienced doctor in the doctor's particular field of medicine. It is ultimately a question of fact for the jury to determine whether the standard of care provided was so badly negligent that it can properly be...