When commenting on the draft guidelines from members' perspective, we were concerned that the proposed approach – which had the potential to increase the severity of sentences for those convicted of the gross negligence form of manslaughter – would have been unintentionally and unduly harsh for doctors as it did not take into consideration the context in which they practise and the inherent complexities of their work.
Background to the MDU's response
The circumstances in which doctors practise medicine – especially within the NHS – may well place them in a different category to other groups who are prosecuted for gross negligence manslaughter (GNM).
Our response to the Sentencing Council explained that doctors are different from other citizens because in their work they are frequently required to make decisions and take immediate action in circumstances which are less than ideal, and over which they have no control.
'We would like to make it clear on behalf of our members that the unique requirements of their jobs and the healthcare environment in which doctors work often put them in profoundly difficult positions in which they have to make immediate and difficult decisions with great potential for things to go wrong,' wrote Ian Barker, MDU senior solicitor.
'Increasing the severity of the sentence for GNM for doctors is unnecessary and has the clear potential to undermine the supportive culture that needs to be fostered to encourage doctors to be open and reflective so that lessons can be learned to improve healthcare and reduce error.'
Increasing the severity of a sentence may be seen as a greater deterrent but that is not necessary with doctors who are already at high risk of unnecessary investigation for gross negligence manslaughter. We pointed out that fewer than one in 10 investigations into GNM involving MDU members has ended in prosecution.
If it is supposed doctors need any deterrent in addition to their professional duty, their awareness of the distress and disruption a GNM investigation causes to a doctor's professional and personal life already has a profound and far-reaching effect. We made it clear there is no need for a greater deterrent.
The revised guidelines
We believe the new guidelines on sentencing for GNM have taken account of the MDU's submission that due to the nature of clinical practice, and the underlying seriousness and intractable nature of some patients' conditions, there was a risk that guidelines that increased the severity of sentences for GNM would be unduly punitive towards doctors who, by nature of their work, are in greater danger of a gross negligence manslaughter investigation and prosecution than other individuals.
We believe this is demonstrated most clearly in the list of mitigating factors. New criteria have been added since the consultation that could apply to doctors, such as:
- Self-reporting and/or co-operation with the investigation
- For reasons beyond the offender's control, the offender lacked the necessary expertise, equipment, support or training which contributed to the negligent conduct
- For reasons beyond the offender's control, the offender was subject to stress or pressure (including from competing or complex demands) which related to and contributed to the negligent conduct
- For reasons beyond the offender's control, the negligent conduct occurred in circumstances where there was reduced scope for exercising usual care and competence
- The negligent conduct was compounded by the actions or omissions of others beyond the offender's control.
In the cases where doctors are convicted of gross negligence manslaughter, we are hopeful that the effect of these new Sentencing Council guidelines will result in sentences that take appropriate account of the difficulties of the environments in which they often practise.
This guidance was correct at publication 09/08/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.