Medical manslaughter has come into the spotlight in the last week following the recent decision in England to deregister a medical practitioner after she was found guilty of manslaughter in 2015. There has been much discussion within the medical and mainstream media about the underlying manslaughter conviction and the subsequent deregistration of the doctor. People are asking ‘could this happen in Australia’? Many medical practitioners have been reported as saying that this could have easily been any one of them.
The medical practitioner concerned in this recent English case was a paediatric registrar who had recently returned to practice after 14 months of maternity leave. She was employed in a Children's Assessment Unit of a hospital. The doctor saw a 6 year old patient who presented with dehydration caused by vomiting and diarrhoea, shallow breathing and slightly cyanotic lips. Approximately 9.5 hours after admission, the patient suffered a cardiac arrest as a result of sepsis caused by pneumonia. He was unable to be resuscitated.
The Crown alleged gross negligence on the part of the doctor for failing to properly reassess the child and seek advice from a consultant in the presence of the child’s symptoms and the obvious continuing deterioration in his condition. The jury was directed that in order to return a guilty verdict on the manslaughter charge, they were required to find that the doctor’s gross negligence caused or significantly contributed to the child’s death or to him dying significantly sooner than otherwise would have occurred.
The jury found that the doctor’s failings led to the child dying significantly sooner than he would have otherwise done. The doctor failed in her appeal of the decision. She was sentenced to 2 years of imprisonment however, that sentence was suspended for 2 years and therefore she was not imprisoned. Following on from this criminal finding, disciplinary proceedings were commenced and culminated in the High Court of the United Kingdom deregistering the doctor for life.
Originally the doctor’s registration had been suspended for 12 months as the Tribunal had regard to systemic failings at the hospital and the shortcomings of other clinicians as mitigating the doctor’s personal responsibility. In overturning this decision however, the High Court found that it was not appropriate to go behind the jury’s decision as these matters were relied upon by the doctor in her defence at the criminal trial. The High Court concluded that the Tribunal’s decision was wrong and was not sufficient to maintain public confidence in the profession or to uphold professional standards.
In Australia there have been a number of medical practitioners charged with manslaughter.
A Queensland GP who gave a child an adult dose of pethidine resulting in death, was in 2000, the first doctor in Australia to be found guilty of manslaughter since 1843 when Dr William Valletine was found guilty of manslaughter for dispensing the wrong medication resulting in death. Following subsequent acquittals of manslaughter findings on appeal, this is the only doctor in Australia who has been found guilty, as opposed to pleading guilty, of manslaughter.
In 1983 and 1992 two NSW based psychiatrists were charged with manslaughter in relation to controversial deep sleep therapy (DST), which took place in the 1970s. One doctor committed suicide before trial and the charges against the other doctor were stayed as a result of the Court being satisfied that the dangers of DST were not known as at 1977 (the date of the patient’s death) and therefore the use of it could not amount to criminal negligence.
An anaesthetist from NSW, was charged with manslaughter when he failed to notice that a patient had stopped breathing intra-operatively, but in 2001 he was acquitted. The acquittal was controversial as evidence in relation to the doctor’s drug use was not admitted into evidence in the trial. Subsequent to this, the doctor’s registration was suspended for 10 years ‘for taking patients’ drugs and failing to properly monitor people under his care, contributing to at least one death’.
In 2006 a NSW doctor was acquitted of manslaughter in relation to allegations that she aborted a 23 week foetus.
In 2006, a NSW GP pleaded guilty to manslaughter over a death arising from him wrongly prescribed morphine tartrate instead of morphine sulphate to a patient, as well as his failure to issue the patient with any dosage instructions. Unlike the matter involving the UK registrar, this doctor was allowed to continue to practice, albeit subject to conditions including a prohibition on prescribing schedule 8 drugs for the period of two years.
In 2007 a QLD gynaecologist was charged by the Coroner with manslaughter after a patient died following damage to a blood vessel intra-operatively and the post-operative sequelae of this, which resulted in organ failure and death. The prosecution withdrew the charges during the trial after evidence was led from two nurses, who had not given evidence at the Inquest. In light of this evidence and following comments by the Judge, the prosecution withdrew the charges.
In 2008 a dentist was acquitted of manslaughter after a patient died following the administration of sedatives resulting in his death. The Court concluded that the Crown had failed to demonstrate that the dentist’s negligence was gross and criminal such as is required to prove the charge of manslaughter.
In Queensland a surgeon was found guilty of 3 counts of manslaughter in 2010, however, the three manslaughter convictions were quashed by the High Court in 2012 and retrials were ordered. Only one charge of manslaughter was retried and the doctor was acquitted of the charge. The other charges were dropped after a plea deal was entered into in which the doctor admitted to dishonestly gaining registration and employment in Queensland.
Most recently in NSW was the 2017 trial of a former gynaecologist. The doctor was charged with manslaughter after a patient of his died of sepsis. The treatment in question took place in 1996. At trial the Crown alleged that the death was caused by an omission of the doctor that was so seriously negligent and created such a high risk of serious injury or death, that it amounted to a criminal offence.
In order to succeed in establishing the charge laid against the doctor, the Court in a Judge alone trial, stated that the Crown needed to prove, beyond a reasonable doubt, the following:
- The death of the deceased; and
- The accused owed a legal duty of care to the deceased; and
- The accused was negligent in that by the accused’s omissions the accused was in breach of the duty of care which the accused owed to the deceased; and
- The omission of the accused significantly or substantially caused or accelerated the death of the deceased; and
- The omission of the accused amounted to —- criminal negligence and merited criminal punishment for the offence of manslaughter because
a) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and
b) involved such a high risk that death or really serious bodily harm would follow as a result of the omission.
The doctor was acquitted as the Court was not satisfied beyond reasonable doubt that the negligence in failing to investigate and consider the differential diagnosis of bacterial infection at that time and in the days following, amounted to gross negligence meriting criminal punishment. In reaching this decision the Court had regard to the doctor’s negligent omissions in the context of the clinical setting in 1996, not 2017 when the matter was heard.
The experience in Australia shows that juries and Courts do not readily find medical practitioners guilty of manslaughter. In some of the cases the matters did not proceed to trial or were abandoned part way through the trial. In the others, bar two cases, one of which the doctor pleaded guilty, resulted in an acquittal. That is not to say however, that a case such as that which arose in England in 2015, could not happen in Australia given that the common law as to medical manslaughter in Australia is the same as the English law. It is however, important to note the 5 matters listed above which each need to be established beyond a reasonable doubt for a practitioner to be found guilty of manslaughter, with the most difficult hurdle for the prosecution being that the omission or conduct was gross negligence meriting criminal punishment.
Post by Karen Kumar