The law's the law, even for doctors

It’s an interesting question, should the law for doctors who kill patients be different from the law for everyone else? The answer is no, of course damn not. But that is what is being floated here, that they get legal privileges as they kill us:

The legal bar for convicting healthcare professionals of manslaughter is currently “too low”, a medical defence organisation has said.

The Medical Protection Society say that a “striking feature” of the law in England and Wales is that “intent, carelessness, or recklessness” is not required for a conviction, and that opportunities to reform the law “have not been seized”.

Their comments come in response to a Government review into the use of gross negligence manslaughter in healthcare following the handling of the case of Dr Hadiza Bawa-Garba.

Note what they’re not saying – that manslaughter law is wrong and needs changing. What they are saying is that manslaughter law as it applies to doctors, and only doctors, is, and should be changed. To which, again, the correct answer is no, of course damn not. For we’ve already got a system which deals with anomalies, close cases and special circumstances, the jury. Which is the correct place to deal with such things.

The law as it stands now is:

Medical manslaughter is legally no
different from gross negligence
manslaughter. This is where the death
is a result of a grossly negligent (though
otherwise lawful) act or omission on the
part of the defendant. In medicine this
refers to medically qualified individuals
who are performing acts within the
terms of their duty of care when the act
or omission occurs.

What this means in practice:

The law in respect to gross negligence
manslaughter (involuntary manslaughter)
was most recently clarified in 1994 in the
case of Adomako. The defendant was an
anaesthetist in charge of a patient during
an eye operation. During the operation
an oxygen pipe became disconnected
from the ventilator. The anaesthetist
failed to notice the disconnection for
six minutes and as a result the patient
died. The anaesthetist was convicted
of manslaughter.

As a result of a failed appeal, the House
of Lords affirmed the conviction and
defined a four-stage test for gross
negligence manslaughter, which has
become known as The Adomako Test.
The four elements of the offence are:
> The defendant owed the victim a
duty of care
> The defendant breached that duty
> The breach caused (or significantly
contributed to) the victim’s death
> The breach was grossly negligent.
However, it still remains a matter for the
jury to determine whether the breach
was grossly negligent.

All of which seems entirely sensible to me.

Yes, certainly, doctors are dealing with people who might well die anyway. It most certainly ain’t true that everyone who kicks their bucket in a hospital deserves to be the victim in a manslaughter case. But why should doctors not be subject to the same tests of law as a scaffolder throwing poles off the roof without checking to see who is wandering past? Which is, roughly enough, what gross negligence is talking about.

I’d also argue by analogy here. Euthanasia – not legal in England. And it shouldn’t be either – according to my mind at least. We all also know that euthanasia happens. Not every upping of the morphine drip is only to take the pain away, sometimes death is supposed to be caused. To avoid even the hint of a Shipman such cases need to be investigated and prosecuted. At which point we’ve got a system for deciding upon “Yep, that was fair enough” or, alternatively, “You Murderer!” That very jury that hears the specific evidence in the case and then comes to a decision.

Do also note that the jury, by definition, encapsulates those changing societal mores on what is acceptable, fair enough, and what isn’t. Rather the point of having them too.

Which is where I end up. Sure, medicine does pose different problems than scaffolding, manslaughter is going to be a bit different in the varying milieu. The law must be the same for all though, what we need is a system of considering those differences and variances. Which we have, the jury. Thus nothing else need be done, no change is necessary nor desirable.

Thus to doctors – you kill someone by screwing up then yes, you should be tried under the same law as the rest of us. And good luck.

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  1. Well their Union has to protect their own. Regardless of the cost to the rest of society. That is what Unions are for – they are all conspiracies against the general public.

    The alternative would be to explain why this manifest incompetent was allowed to work in the UK. There is just something about her that does not inspire confidence. Can’t think what it is. Still, you ought to read a month’s worth of Daily Mail articles on doctors who are struck off for incompetence or sexual assault or the like. You might notice something.

  2. The problem with doctors and death is that doctors usually kill in well meaning but technically complex ways. So doctors have a belief, reasonable really, that only they can understand what the doctor was doing and hence that us peasants should not be allowed to stand in judgement on them.

    Up to a point, this is perfectly reasonable. If a doctor tries a heart transplant and it does not work, we all see the grieving relatives and our natural response is to give them lot of money. Especially if the doctor is arrogant. But it is not fair.

    Still, how is there any doubt in this case:

    During the operation an oxygen pipe became disconnected from the ventilator. The anaesthetist failed to notice the disconnection for six minutes and as a result the patient died.

    She had one job …..

  3. “Intent, carelessness, or recklessness”…Yes, it would be more striking if the anesthetist were on her iPad or applying makeup for those six minutes. But it is manslaughter even without. To repeat SMfS, she had one job. It is one of the more lucrative specialties, reflecting the importance of that job (though also reflecting malpractice insurance). I quite agree with Tim that the law should be the law, no matter what a professional guild or a labor union says, and any moral ambiguity should be laid at the feet of the jury.

  4. If the normal human rate of error is 1% of decisions made, and an average human makes life-threatening decisions 1% of the time, then you’re pretty unlikely to get done for negligent manslaughter by chance.

    But if you make life-threatening decisions like 90% of the time, then the odds are a lot different, and the thresholds should be too.

    The law shouldn’t be any different for doctors, but standards to be met have to depend intelligently on the context, which is incredibly difficult to write into legislation.

    Also, there is the question of who pays for it. If it becomes known that surgeons and anaesthetists have a high probability of going to jail, they’re going to charge a *lot* more for their services. That implies there will be fewer people getting life-saving operations. Which kills more?

    Everything is a trade-off.