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On 1 November 2018 sentencing guidelines were introduced in relation to convictions for Gross Negligence Manslaughter (GNM).
The aim of these guidelines is to provide consistency in relation to sentencing and also to increase the sentencing of offenders, which brings GNM in line with most other criminal offences (sentencing for GNM having previously been based on the common law by reference to previous cases rather than any guideline for custodial terms). Justice Minister Rory Steward said that “Manslaughter is an extremely serious offence,” “so it is vital our courts have clear, consistent guidance in these often complex cases” and “these guidelines will make sure sentences reflect the severity of the crime.”
Under the new guidelines, once an individual has been convicted of GNM, the courts follow a number of steps in determining sentencing. Some of the more significant points arising for members of the healthcare professions are as follows;
The court will determine the culpability of the offender. The new guidelines have introduced four levels of culpability, from low to very high, ranging from 1-18 years custodial sentence respectively. For example, a factor which indicate lower culpability could be a single lapse in the offender’s otherwise satisfactory care. Factors which could indicate a higher culpability could be where there is one or more of following (not exclusive): an offender showing blatant disregard for a very high risk of death resulting from their negligent conduct; or an offender continuing to repeat the negligent conduct in the face of the obvious suffering caused.
The court is to apply a sentencing range which will be the starting point for all offenders regardless of any pleas or previous convictions. For example, for very high culpability, the range is 10-18 years in custody, whereas even for lower culpability the range is 1-4 years with a starting point of 2 years. There is no reference in the guideline to a sentence being suspended, which suggests that it is only in the rarest of circumstances, with the most significant mitigation, where that would be appropriate. Dr Bawa-Garba’s sentence may well have been decided differently under the new guidelines.
The court will then take into account aggravating factors such as previous convictions, history of violence, or actions after the event including covering up and concealing evidence.
The court is now required also to look at factors which may assist in reducing sentencing including remorse, self-reporting, reasons beyond the offenders control including lack of equipment, support or training and stress and pressure. These factors are particularly relevant for healthcare professionals. The final steps for the court to consider are; to consider any factors which indicate a reduction for assistance to the prosecution, a reduction for a guilty plea, dangerousness, totality in principle, compensation and ancillary orders, reasons and consideration for time spent on bail.
The new guidelines provide more clarity for both the court and the defendant, but with that clarity comes greater stringency. Historically, as previously cases of GNM are relatively rare, there was a wide variation in sentencing between courts, and the highest sentence recorded in recent years for a healthcare professional was in 2013 when a GP diagnosed depression in a middle-aged patient who died shortly afterwards from diabetic ketoacidosis. The doctor pled guilty to manslaughter and received a two-and-a-half- year custodial sentence.
For healthcare organisations and professionals, the new guidelines are inevitably going to cause concern given the significant increase in custodial ranges from sentences imposed historically. By way of example; in 2004 a surgeon was given a 21 month suspended custodial sentence after pleading guilty to manslaughter when his patient suffered catastrophic blood loss during an operation to remove a liver tumour. In 2007 a GP was given a two-year suspended sentence after admitting manslaughter when a he gave a patient a lethal overdose of diamorphine for migraine. However, in 2012 a urologist was sentenced to two years imprisonment, after pleading guilty, when a patient died of sepsis following surgery. In 2013, before the conviction was overturned, a surgeon was given a two-and-a-half year custodial sentence after the patient underwent a knee replacement and developed abdominal symptoms. The surgeon preformed a laparotomy for a perforated bowel, and it was found that there was an inappropriate delay in the diagnosis and treatment. The real impact of the Guidelines is yet to be determined.
The guidelines of course will not affect the number of prosecutions within healthcare, as the factors detailed apply only to sentencing and not to prospects of conviction. However, of greater impact in this area will be the outcome of the GMC’s review of how the law on GNM (and culpable homicide in Scotland) is applied to medical practitioners. Whilst the GMC recommendations will not be binding on the CPS or police, it is to be hoped that their review and recommendations will influence the way in which cases are investigated. The terms of reference for the review were announced in March 2018. The Chair, Dr Hamilton, has stated that “if a doctor intends deliberately to harm a patient or seriously violates accepted codes of practice, the criminal justice system should be applied. Doctors are not above the law.” However, Dr Hamilton also accepted that post Dr Bawa- Garba there is a climate of fear amongst medical professionals.
The review is expected to report in spring 2019 and is considering the following issues:
1. Post incident, pre-criminal investigation – this will include the quality of investigations, the distinction between errors and ‘truly and exceptionally bad’ failings and the lack of corporate manslaughter prosecutions being brought.
2. Inquiries by the coroner – including learning points, avoidable delays in the process and the role of medical experts.
3. Police investigations and decisions to prosecute – whether there is the necessary support to enable fully informed choices, whether there are any factors which may need to be taken into account and the proportionality and appropriateness of cases being referred to the criminal justice system.
4. The use of medical experts in criminal investigations and proceedings
5. The professional regulatory process, including the meaning of public confidence, whether there should be more clarity in relation to GMCguidance and the extent of support available for medical practitioners.
6.Employment and support – including how to encourage a learning culture and the availability to continue working whilst there are criminal and regulatory matters outstanding as well as the provision for supervision and training.
Coupling the terms of reference for the review and the factors to be considered when sentencing under the new guidelines it is clear that the focus is shifting to consider the ‘seriousness’ of clinical errors and the need to explore the context within which such errors occur. Those who are the subject of investigations, or are being prosecuted for offences, should therefore ensure that evidence is obtained as to the context and circumstanceswithin which the alleged crime arose and should commence reflection and work on remediation at the earliest possible stage.
Therefore, when a prosecution is successful, the sentencing guidelines are more stringent, but it remains to be seen whether the outcome of the GMC review will result in fewer decisions to charge and matters instead being dealt with by the regulator.
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