March 13, 2018

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. Although of course if a medical professional is to be prosecuted for involuntary culpable homicide the definition of the conduct should be as clear as possible.

A bill to make causing death by recklessness or gross negligence a statutory offence was lodged in the Scottish Parliament on 5 December 2014 and its consultation period closed in March 2015. This has not been progressed any further. It seems the Scottish Government has no appetite for this.

The bill proposes to define the offence in similar terms to the required elements of gross negligence manslaughter in England.

It is likely the GMC's review of the law will highlight the inconsistencies in the offences in England and Scotland and the apparent difference in climate towards the criminalisation of clinicians. The result of the review is likely to draw attention to the proposed bill to provide clarity to the relevant offence. While certainty should be welcome, there is a risk though that this will bring Scotland in line with England. Increased clarity of the offence may prompt increased criminal prosecutions of healthcare practitioners in Scotland. That would be strongly contrary to the Scottish Government’s stated aim of moving towards a “no blame” culture, in the practice of medicine.