Dr Bawa-Garba: Could It Happen In Scotland?

Dr Bawa-Garba's registration was suspended following a conviction for gross negligence manslaughter. The GMC appealed, arguing suspension was too lenient and Dr Bawa-Garba was struck off the register. Her treatment by the GMC has caused outcry amongst healthcare practitioners. The response from the medical community has prompted the GMC to order a review of gross negligence manslaughter in the medical setting. They will also be looking at the equivalent offence in the devolved nations. The review will likely highlight the inconsistent approach to prosecution of healthcare practitioners between England and Scotland.

In England, there has been an increasing number of high profile prosecutions of healthcare practitioners arising out of the care of patients. In recent years the cases of Sellu and Cornish have also involved the prosecution of doctors for gross negligence manslaughter in England.

In Scotland there is no offence of gross negligence manslaughter. The equivalent offence is involuntary culpable homicide. There has been no successful prosecution of a doctor involving this offence.

Culpable homicide is committed where the accused has caused loss of life through wrongful conduct, but where there was no intention to kill. However the mens rea for the offence is undefined and is to be inferred from the circumstances of the accused's actions. The only guidance is that the mens rea of "criminal recklessness in the sense of a total indifference to and disregard for the safety of the public" is an essential element.

The essential elements of involuntary culpable homicide are uncertain and unpredictable. Ironically it may be this lack of clarity which is helpful for clinicians in Scotland and has prevented the prosecution of a medical practitioner in Scotland for culpable homicide...