Was the death due to medical manslaughter? The Coroner will consider whether this is 'likely'

There have been some seismic changes in Coronial law in the last few years. Below is an overview of some of the major developments.

Standard of proof

First, the case of Maughan in 2018 reduced the standard of proof for a Coroner to determine a conclusion of suicide, from the criminal standard to the civil standard (from 'beyond reasonable doubt', to 'the balance of probabilities'). However, the High Court (and many others) believed that this lower standard would not apply to the most serious inquest conclusions which refer to a criminal act i.e. murder, infanticide or manslaughter (including unlawful act, corporate or gross negligence manslaughter).

In late 2020, the Supreme Court confirmed that now the civil standard of proof applies to all conclusions in an inquest, which includes unlawful killing.

Unlawful killing

An unlawful killing conclusion at an inquest is rare. As the new Chief Coroner HHJ Thomas Teague QC indicates in his first Law Sheet (number 6).

In 2019, when the criminal standard of proof applied, there were fewer than 166 conclusions of unlawful killing made by coroners. Many of those inquest conclusions followed criminal proceedings, where the defendant was found guilty at trial in the Crown Court e.g. homicide. Now that the standard of proof has been reduced, it is likely that the number of unlawful killing conclusions will increase in 2021.

Gross negligence manslaughter in healthcare

In relation to healthcare, gross negligence manslaughter is sometimes informally referred to as 'medical manslaughter'. Although the standard of proof has changed in inquests, the ingredients of the test remain the same. It is necessary to prove that it is likely that;

1. There was a duty of care owed by the individual to the deceased,
2. There was a breach of that duty of care,
3. The risk of death was a reasonably foreseeable consequence of the misconduct,
4. The breach caused the death, and
5. Having regard to the risk of death involved, the misconduct was grossly negligent so as to be condemned as the serious crime of manslaughter.

Unlawful killing in an inquest is not an equal alternative to a finding that a 'failing contributed to the death' of a patient, or even that 'neglect contributed'. There are some important differences in relation to unlawful killing:

1. All of the ingredients must be proven to relate to one identifiable person (not combined through the actions of different people within a hospital or NHS Trust).
2. The risk 'of death' must be reasonably foreseeable as a consequence of the misconduct.
3. The legal direction about the meaning of the word 'grossly negligent' must follow the detailed case law. The criminal conviction of the surgeon Mr Sellu was quashed on appeal because of this. In a medical context ‘mistakes, even very serious mistakes, and errors of judgment, even very serious errors of judgment, and the like, are nowhere near enough for a crime as serious as manslaughter to be committed’ (R v Misra).

Gross negligence manslaughter and Covid-19 – identifying the context

Medical organisations have recently raised a call for protection for medical professionals from possible criminal charges of unlawful killing, in relation to care provided during the pandemic. There is concern that the police may investigate a death when it was not possible to provide the usual standard of care (perhaps when care was rationed, or the doctor had been re-deployed outside of their usual medical specialty). However, a criminal prosecution requires evidence to prove the elements of the offence to the criminal standard (beyond reasonable doubt). Given the pressures across all emergency services, including the police, it is unlikely that investigations of this nature will happen soon.

As a result, it is likely that the issue will first be considered by Coroners and possibly the GMC. However, the extraordinary context within which mistakes occur, must be considered, for example, when deciding whether the misconduct was 'so far below the required standard' as to amount to a crime. The GMC has already issued guidance which refers to the pandemic context when considering complaints. As a result, patient numbers and acuity, staff shortages and resource limitations can be considered in evidence, together with national and local policies.

Conclusion

Healthcare providers are concerned about the risks of criminal prosecutions or unlawful killing conclusions in inquests, linked to deaths occurring during the pandemic. However, these decisions must consider the extraordinary context in which healthcare was actually being provided. Quickly changing guidance and accepted practice during the pandemic (or during particular spikes in demand), are likely to alter the standard of care expected, and should be a topic for expert evidence.

If you are involved with a death which relates to a mistake or misconduct by an individual, or where unlawful killing is being alleged, seek legal advice at a very early stage (immediately conserving relevant contextual data will be important).

If you are concerned about a corporate manslaughter investigation, please see our previous article here.

Webinar

On 9 February 2021, our Global Head of Healthcare, Claire Petts, will be discussing the new civil standard of proof for unlawful killing conclusions at inquests. If you would like to register for this webinar, please email healthcarebd@clydeco.com

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