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Landmark NHS Gross Negligence Manslaughter Case comes before the Courts

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On 13 January Dr Errol Cornish, an anaesthetist, went on trial in London accused of gross negligence manslaughter stemming from the death of Mrs Frances Cappuccini in October 2012.  Another doctor reportedly implicated, Nadeem Azeez, also an anaesthetist, has fled to his native Pakistan.

Both doctors are alleged to have failed to take basic steps to ensure that Mrs Cappuccini began to breathe again when she started to come round from a general anaesthetic after an operation following a caesarean section.  Whilst criminal cases such as this are relatively rare it is the fact that the hospital trust responsible for the doctors (Maidstone and Tunbridge Wells NHS Trust) is also on trial in relation to the death of Mrs Cappuccini that makes the case groundbreaking.

The Defendant Trust is accused of failing to ensure that the two doctors in question were adequately trained to treat seriously ill patients. The criminal charge that has been brought against them is that of corporate manslaughter.  This is in fact the first time that an NHS Trust has been charged with corporate manslaughter since the offence was introduced in 2008.

What is gross negligence manslaughter?

In civil clinical negligence claims the claimant must show that a medical professional breached their duty of care to them and that this has, on the balance of probabilities (i.e. more likely than not), caused them an injury or loss. Proving in the criminal courts that a patient has died as a result of a medical professional’s gross negligence is a far more difficult task.

A gross negligence manslaughter prosecution may come about when there is evidence to suggest that a death has occurred as a result of a grossly negligent (otherwise lawful) act or omission by a defendant. A four stage test known as the Adomako Test has clarified the position with regards to the law in this area in a 1994 case of the same name that came before the House of Lords (now the Supreme Court).  The test states that in order to make out a case for gross negligence manslaughter the following elements must be established:

  • The defendant must have a duty of care to the victim;
  • The defendant must have breached that duty;
  • This breach must have caused the death of the victim;
  • The breach must be grossly negligent.

In a gross negligence manslaughter trial the jury will have to decide, to a criminal standard of proof that the defendant is guilty of the crime. In doing so they have to consider whether the act or omission in question was so grossly negligent as to be considered criminal; the jury may be asked to consider whether the act/omission was ‘reprehensible.’

In gross negligence manslaughter prosecutions involving defendants who are medical professionals often the first limb of the test will be established as, once a medical professional has taken charge of a patient, they asume a duty of care to them. In order to provide the jury with information to decide on the remaining elements of the test they will have to hear independent medical evidence about the treatment the victim received. The jury’s task is not a straightforward one and the verdict must be decided on the individual facts of the case.

What is corporate manslaughter?

As set out in the Corporate Manslaughter and Corporate Homicide Act 2007, in order for an organisation to be guilty of corporate manslaughter it must be proven that:

  • The way in which its activities are carried out/managed/organised;
  • Caused the victim’s death;
  • That this amounts to a gross breach of a duty of care owed by the organisation to the deceased.

An organisation can only be guilty of this offence if the way in which its activities are managed or organised by its senior management is a substantial factor in the breach. The fact that these are not simple tests to overcome undoubtedly accounts for the limited prosecutions to date under this Act.

The press have reported that neither anaesthetist caring for Mrs Capuccini had the necessary qualifications, as laid down by both the Royal College of Anaesthetists and the NHS for anaesthetists working with seriously ill patients. The prosecution allege that the Defendant Trust failed to properly check whether both doctors’ qualifications and experience met the required standards.

Why is this case so important?

This case may open the door for similar prosecutions to be brought against NHS Trusts and healthcare organisations in the criminal courts. As both Dr Cornish and the Maidstone and Tunbridge Wells NHS Trust deny the offences, and with a trial ongoing, it remains to be seen how successful these prosecutions will prove to be. Certainly it will not be an easy task for the prosecution to overcome the legal hurdles they are up against, even with the horrifying facts of Ms Capuccini’s death.

Whatever the outcome of this case it is the first of its kind utilising the 2007 Act against an NHS Trust, and its impact will be watchfully awaited by both medical and legal professionals alike.

The author of this article is Rebecca Treece, who is a solicitor in the Clinical Negligence Department at Lester Morrill.

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