Q&A: 'Medical manslaughter' a growing worry

The threat of "medical manslaughter" has had a chilling effect on over-worked clinicians around the world, advocates say. Photo / File

Science reporter Jamie Morton talked to Dr Jenny Vaughan about the issue of "medical manslaughter" – and how it relates to New Zealand's system.

A UK neurologist and medical law campaigner just visited the University of Auckland's Faculty of Medical and Health Sciences to discuss "medical manslaughter" – when doctors are charged over the deaths of patients.

Dr Jenny Vaughan was the medical lead for a group that helped overturn the conviction of a UK consultant surgeon, Dr David Sellu.

Since these events, grassroots support has grown from thousands of healthcare in support of Dr Hadiza Bawa-Garba, a trainee paediatrician who was convicted of manslaughter in 2014 after the death of a child in Leicester. Thousands of frontline medical staff crowd-funded a campaign and successfully overturned a court decision to erase her from the UK medical register. Her case proved huge in the UK, for a profession at breaking point.

At the Doctor's Association UK, advocates have worked with national organisations and the media in order to highlight how healthcare staff are working on critically under-staffed wards and in under-resourced departments, with an increasingly unmanageable workload.

So exactly what is "medical manslaughter" – what does the term define?

This phrase is used to describe what healthcare workers can be found guilty of if a patient, who is their responsibility to looking after, dies unlawfully when they have shown a truly, exceptionally bad level of care.

A non-medical "lay" jury determines this: the action or lack of by the clinical professional must be a significant part of why they died.

In the UK, this poor "standard" is described "gross negligence". In New Zealand, it was clarified by as being "a major departure" from the proper clinical standards.

You were the medical lead for the group that fought to quash Dr David Sellu's conviction. Can you tell us about that case and the impact it had on the wider issue?

David Sellu is a senior surgical specialist in colorectal problems.

In February 2010 he was asked to see a patient in a private hospital in north London who had just had a knee replacement.

This gentleman unfortunately developed a perforated bowel and there was some difficulty arranging an emergency anaesthetist so David could take him to theatre to repair it.

There was also a miss-communication over the instruction to prescribe antibiotics.

After a series of protracted inquiries, David was convicted of unlawfully killing the patient at the Old Bailey in November 2013.

This was because he was blamed for the delays and miss-communications. He was sentenced to 2.5 years in prison, half to be served behind bars.

It was a tragic outcome for both surgeon and patient. He was a hospital colleague of mine and I knew his wife. While he was in prison a group of us got together to fund an appeal.

It was an incredibly difficult and expensive three-year journey but we did eventually succeed in overturning it against all the odds.

David's original conviction sent shock waves through the profession. Very few healthcare workers had been found guilty of such a serious offence.

Once the truth had come out, after the appeal, many were appalled at his treatment and remarked on the fact that almost exclusively those found guilty on the recent past were black or ethnic minority doctors.

No retrial was ordered as it was quite clear that the problems were not only much more complicated than they had seemed as to how high-risk the surgery was, but in addition questions were raised about the hospital and what had gone wrong there.

The jury simply hadn't heard all the facts. He was completely exonerated by an independent tribunal who looked at the whole case again and is now back working with no conditions on his licence to practise medicine.

More recently, we've seen another campaign surrounding Dr Hadiza Bawa-Garba, a trainee paediatrician who was convicted of manslaughter in 2014 after the death of a child in Leicester. What has this case highlighted so far?

This case has acted as a lightning rod for thousands of doctors in the UK, especially trainees.

Unfortunately Dr Bawa-Garba was working in very difficult conditions that day.

There were failures of supervision as she had only just come back from maternity leave and hadn't recently worked in such demanding conditions.

The consultant responsible for her direct supervision was out of the hospital until 4.30pm and there were widespread IT failures so blood results could not be obtained in a timely fashion.

There were staffing problems as she was also covering for an absent colleague and wasn't familiar with the hospital.

Many doctors became fearful that as they were working in similar conditions in the NHS, it was possible that they too could face a manslaughter charge after the tragic death of a patient.

The General Medical Council (GMC) is the body in the UK responsible for regulating who can and cannot practice medicine.

It tried to erase her name from the medical register as it argued that her conviction was so serious that it wasn't compatible with having a licence.

Initially, it succeeded, but there was a huge money-raising campaign of hundreds of thousands of pounds to appeal against this result by thousands of doctors who felt they had to speak out.

Many pointed to the basic unfairness of the fact that the hospital had multiple failings yet no prosecution had been mounted against it.

The appeal succeeded in August last year and we hope that Dr Bawa-Garba will able to work from this spring.

There have been a number of inquiries in Britain since then to try and tackle poor morale in healthcare staff as there are currently thousands of vacancies.

We hope that the outcome of all of this will be a less punitive culture. Nobody is saying that doctors and nurses are above the law. However, employees working in challenging conditions should have this recognised.

When mistakes occur in medicine it's very important that staff are able to learn from errors, or they will simply happen again.

The value of criminal prosecution in this area appears to be limited if one looks at the overall negative impact on the patient safety agenda and the deskilling of clinical professionals which necessarily occurs during the prolonged process of investigation.

This can take up to 18 months.

The effect on families who have lost their loved ones should also be considered as it could be argued that the criminal process delays the grieving process.

Families should have a full, early apology if there has been individual or collective responsibility when patients are harmed. They should also receive appropriate compensation.

Protracted legal proceedings delay this process, although nobody is saying that medics who deliberately harm patients should not be subject to the full force of the law.

What messages have you heard from the New Zealand medical community – and what implications are there for our own country?

The New Zealand community appear to have come together and changed the law so that medics can be prosecuted but only if their actions or inactions constitute a "major departure" from established clinical practice.

There appears to be a more developed system of hospitals being held to account.

There haven't been any recent successful prosecutions in this area. I don't sense, however, that doctors and nurses in New Zealand are above the law though.

It seems to me that there is more understanding about how blame should not be used as a tool and patients are better served by hospitals making sure their systems are as safe as they can be.

What systemic changes are needed to prevent such miscarriages of justice against clinicians – but also to make our clinical environments safer for healthcare professionals and patients alike?

Society, including our governments, should embrace a "safety first" culture, otherwise known as a Just Culture.

Those working in healthcare should be encouraged to speak up about the errors they make so others can learn not to make the same error.

People who "whistleblow" should be supported by our institutions as unsafe practice must be weeded out.

Very often, these workers are seen as trouble-makers.

Organisational learning can only take place if error is dealt with without blame, unless there is wilful or reckless behaviour such as being drunk at work or dishonesty.

Only through this wholesale change can patients truly be made safer. The Doctor's Association has recently launched a new campaign 'Learn Not Blame".

It is led by Dr Cicely Cunningham and aims to spread this change in healthcare both nationally and internationally.