By Rozhin Shabbak, LLB Law Graduate
Bawa-Garba v General Medical Council  EWCA Civ 1879
As the law stands, doctors are not exempt from gross negligence manslaughter charges.
In 2015, Dr Bawa-Garba was found guilty of gross negligence manslaughter and given a 2-year suspended sentence when she failed to diagnose and treat sepsis leading to the death of a 6-year-old boy.
In 2018, while the High Court held in favour of the General Medical Council that Dr Bawa-Garba should be struck off the Medical Register, the Court of Appeal allowed Bawa-Garba’s appeal for and overruled the sanction of erasure. The original order of the medical practitioners’ tribunal was restored (suspension for 12 months).
This case attempts to set the standard and conditions for clinical negligence cases and the type of punishment proportionate to such cases.
Medical negligence can result in both criminal and civil law consequences. The overlap between criminal and civil law in medical negligence cases can create confusion for both the victims and accused. This is because these cases involve complex legal and medical issues, making it challenging to determine the appropriate legal framework for addressing them.
In civil law, negligence is generally defined as a failure to exercise reasonable care, while in criminal law, the threshold for negligence is much higher. To prove criminal negligence, there must be evidence that the healthcare provider acted with a reckless disregard for human life or safety.
In addition, the standard of proof is higher in criminal cases than in civil cases. In civil cases, the plaintiff only needs to prove their case by a majority of the evidence, while in criminal cases, the prosecution must prove the defendant’s guilty beyond a reasonable doubt.
Medical professionals have an ethical and legal obligation to provide patients with a standard of care that meets accepted medical standards. However, despite their best efforts, medical professionals may sometimes make mistakes that result in harm to patients.
The increased regulatory scrutiny in medical cases raises the concern of whether criminal law is the correct vessel to hold professionals accountable for their failures. While, in the UK, civil recourse is commonly used to compensate victims, it is appropriate to suggest that in particularly egregious medical negligence, criminal charges should be imposed.
In some cases, healthcare providers may face both civil and criminal liability for medical negligence. For instance, a healthcare provider may be sued for medical malpractice by a patient or their family, while at the same time facing criminal charges for reckless endangerment or manslaughter.
Criminal Proceedings – Negligence by medical practitioners
In some cases, criminal law should hold medical professionals accountable for their failures in certain circumstances and wrongful acts. Medical professionals are held to a higher standard of care than the average person, and when they cannot meet that standard, it can have serious consequences for their patients. Where the action meets the threshold for recklessness, it is appropriate for criminal charges to be imposed on medical professionals.
Criminal charges for medical negligence can provide a sense of justice and closure for victims and their families and send a message that society will not tolerate harmful conduct by healthcare providers and that those who engage in such conduct will be held accountable. Also, imposing criminal sanctions, acts as a deterrent to other healthcare providers who may be tempted to engage in similar conduct.
Further, a civil lawsuit can take years to resolve and may result in inadequate compensation for the victim, particularly in cases where the victim has suffered serious injury or loss of life. For example, Dr Harold Shipman (GP), was convicted of 15 counts of murder and one count of forgery in 2000 for killing his patients through lethal injections of diamorphine. Therefore, it may be that criminal charges will provide a stronger incentive for medical professionals to adhere to a higher standard of care and ensure that they are proportionately held accountable for their actions.
Proposal: Negligence by medical professionals must be reserved to civil litigation
However, if we choose to challenge medical negligence in criminal courts, the law of tort to redress a wrong done to a person and provide relief from a breach of duty of care by awarding monetary damages as compensation becomes ineffective. The punishment of a criminal sentence is too great, which in many negligence cases, is disproportionate.
The use of criminal law in medical cases can be controversial, as it may seem to take away from a doctor’s role and expertise – a chilling effect on medical practice. It is important that the legal system carefully considers medical evidence and consults with medical experts in order to make informed judgments about the standard of care that should be expected in any given case. Also, criminalising negligence in medical cases will discourage medical professionals who already face a high level of regulatory scrutiny and that additional criminal liability on top of civil liability would be overly punitive and not necessarily result in improved patient outcomes. This can open the floodgates to increased litigation and breakdown of trust between doctors and patients. Doctors will overcompensate and risk not giving the best medical care.
Ultimately, I would suggest that criminal charges must be applied narrowly to cases where it is clear that criminal actions cause negligence. This should be specific to medical professionals under the influence of drugs, alcohol and/or illegal substances and where the mens rea relates to intentional harm and gross negligence. Otherwise, civil lawsuits may be more appropriate in cases of medical malpractice.
Rozhin Shabbak, LLB Law Graduate