Gross negligence manslaughter- Tolerating risk in the era of coronavirus
“If you need to be right before you move, you never win. Perfection is the enemy of the good when it comes to emergency management. Speed trumps perfection. The problem is… everyone is afraid of the consequences of error, but the greatest error is not to move. The greatest error is to be paralysed by the fear of failure”
- Dr Mike Ryan Executive Director WHO – WHO briefing, 14 March 2020
Though directed at the systematic response to emergencies, those words of Dr Mike Ryan will no doubt resonate with decision-makers at all levels in the health service at this time. The coronavirus pandemic has placed pressures upon medical practitioners probably not seen domestically since the Second World War when the legal frameworks governing medical practice were somewhat different.
Recently, medical defence organisations have raised concerns about potential criminal liability of their members arising from their work at the bedside in dealing with the pandemic.
Currently, the pressures upon the medical practitioners are myriad. It is undoubtedly the case that there is a large element of making the best of what is available and that means using facilities that are less than ideal and facing serious challenges around resources and supplies. It also means working with unfamiliar colleagues, many of whom are working in unfamiliar environments and using equipment and drugs which are unfamiliar. All of this is exacerbated by working in protective equipment which is uncomfortable and impedes effective oral communication. Inevitably, during an emergency of this scale, there will be times when things are done imperfectly, even negligently – when measured by the usual standards of care which are provided. There are significant uncertainties as to how such conduct will be assessed in due course. Will it ever really be possible for someone facing allegations of clinical failures to fully reconstruct all the factors and circumstances which shaped their judgment in the moment? Where clinicians have been redeployed to a new and unfamiliar role, what standard will they be held to?
Clinicians should not be making resource allocation decisions on anything other than best interests assessments for each patient. If the best interests of a number of patients require resources which are too scarce to treat all of them, then decisions as to the allocation of those resources are a matter which requires the intervention of the High Court. Clinicians should involve their Trust’s legal departments in such cases as early as possible.
Nonetheless, there may be situations where the scarcity of resources impacts decision-making in a manner which does not involve a clear contest between the competing interests of identifiable patients. Judgments about thresholds for offering or withdrawing interventions may be influenced more subtly or subconsciously through an awareness of the overall scarcity of resources and the pressures of increasing demand. Thus, it is possible that situations might arise where it is alleged that interventions were withheld, or withdrawn prematurely, through negligent decisions that treatment was not in the patient’s best interests. Such decisions could potentially play a significant causative role in the individual’s death. Manslaughter charges could, in principle, be brought against a doctor for the alleged failure to provide or continue treatment.
However, a simple case of poor decision making when exhausted and confronted with an unmanageable workload is also a foreseeable scenario; as is treatment which appears deficient by the standards of ordinary times. In these instances a review of the patient’s records alone would be unlikely to give a complete picture of the prevailing circumstances and environment and so it is likely that some further investigation would be required to understand the full range of relevant factors.
In exceptional times, one would hope that any prosecuting authority, and any expert whom they instruct, would provide a realistic and balanced assessment of what could really be considered to be a falling far, far below the standard expected from a medical practitioner to the extent that it could be considered criminal. However, even prior to the coronavirus outbreak, concerns had been raised on many occasions, not least as part of the Review of gross negligence manslaughter proceedings chaired by Leslie Hamilton, as to the quality of expert evidence being used by prosecuting authorities to support manslaughter charges.
One recommendation of the Hamilton review was that any incident which results in a doctor being investigated must ensure that the environment within which the incident occurred is subject to external scrutiny. That recommendation gains increased cogency in the current pandemic context.
After the Hamilton review there were calls for the law in England to be amended to mirror the position in Scotland where proof of intention, recklessness or grossly careless conduct is required to succeed in a prosecution for gross negligence manslaughter. The Government accepted the recommendations of the separate Williams review which, as well as raising concerns about experts, called for the establishment of a working group to set out a clear explanatory statement of the law on gross negligence manslaughter including express reference to the requirement for conduct to be “truly, exceptionally bad” before the offence can be made out.
One can only hope that, if any such complaints are made to the police or other authorities in these extraordinary circumstances, they are mindful that medical practitioners will often find themselves in an almost impossible position. A sympathetic analysis of all the circumstances a medical practitioner faced, in the heat of the most extraordinary Public Health emergency in living memory, should be considered before any charging decision is made. Perhaps an obvious pre-requisite for any expert opining in relation to the practitioner’s actions would be that they must have comparable clinical experience gained during the pandemic in a comparable setting, so that they too could have experienced a working environment not seen for 75 years or more. However, those measures would not prevent police or GMC investigations and the associated stress, or the impact which the prospect of such an investigation may have on clinical decision-making today, calling to mind the words of Dr Ryan (above). That may lie behind the calls which have been advanced for express legal protections. Any indemnity afforded to clinicians or institutions would inevitably raise questions about how the State would discharge its duty under Article 2; the current jurisprudence on that topic having been influenced by the availability of a range of remedies. The resumption of parliament at least permits the competing arguments to be canvassed as part of the democratic process.
 We note current NICE COVID-19 rapid guidelines on Starting, reviewing and stopping critical care treatment supports stopping critical care treatment “when it is no longer considered able to achieve the desired overall goals (outcomes).” It is implicit that that is a reference to the desired overall goals for that particular patient. Accesible here: https://www.nice.org.uk/guidance/ng159/chapter/3-Starting-reviewing-and-stopping-critical-care-treatment
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.