When is healthcare criminal?

The case of Dr Bawa-Garba and the resulting collision between the medical community and the criminal justice system, sent shockwaves around the world. Dr Richard Stacey, head of policy and technical at Medical Protection, analyses criminal cases handled by MPS in 2017 to gauge the likelihood of further charges of gross negligence manslaughter.

Introduction: Overview and methodology

The aim of this exercise was to analyse UK medical cases from 2017, with an MPS case type designated “criminal”. MPS receives frequent requests for assistance from UK members in relation to criminal matters – one to two per week on average.

In total, 73 cases were returned in the search. The first 50 were analysed on the basis that cases opened later in the year were less likely to have reached an endpoint. The cases originate from both clinical and non-clinical settings – and we will look into these, and the causes and outcomes, later in this article.

Table 1: Breakdown between medical and dental

Table 2: Breakdown by grade

Table 3: What was the outcome of the criminal matter?

Part 2: Cases from the clinical setting

In matters that arose in the clinical setting, the commonest allegation was sexual assault arising in the context of the consultation. In 2017, on average, MPS received one to two requests for assistance in such circumstances per month (19 in total, which does not include the 23 cases that did not form part of the analysis) and these all emanated from medical members.

• In 15 cases, the criminal aspect of the case was either closed or is highly unlikely to proceed. While this represents a good outcome for the affected members (albeit in four cases the GMC investigation was still ongoing), they will have been through a significantly distressing period during and pending the outcome of the police investigation.
• In four cases, the criminal investigations are ongoing and it is possible that in some, or all, of these cases a criminal conviction may ensue.
• In the majority of cases the allegations arose from a misinterpretation of touching (be it inadvertent or intentional) in the course of a legitimate clinical examination. There was an absence of consent and an appropriate explanation about the nature and purpose of the examination, which can be compounded by the absence of a chaperone.

Learning point: Read our advice on consent here

Learning point: Watch our video advice on communication here

Learning point: Read our advice on chaperones here

Gross negligence manslaughter

There were three cases where the member was potentially vulnerable to a gross negligence manslaughter charge. In two of the cases, the police have not pursued their investigations. Irrespective of the merits of any such allegations, the cases can take some time to investigate and even if no charges are pursued, there are usually other ramifications (for example, a coroner’s inquest, a Trust investigation, a complaint, a referral to the regulator), which means that healthcare professionals affected are subjected to a prolonged period of distress and uncertainty.

The culpability of the member in relation to a potential gross negligence manslaughter charge turns on the facts of the case and, in particular, whether or not the member’s involvement in the case can withstand the scrutiny of an appropriate expert. This is bearing in mind that the test for gross negligence is not simply that the doctor’s actions or omissions were negligent to the civil standard, but rather that the failings were of such seriousness that they could be deemed as criminal.

Sexual assault

Of the 19 cases of alleged sexual assault in the clinical setting:

• Nine were closed in their entirety with no further action.
• Two had no police investigation – and it is unlikely that the case will proceed in any forum.
• Four had seen the criminal aspect of the case closed with no further action, but the case before the regulator is ongoing.
• Another four had an ongoing criminal investigation.

Part 3: Cases from a non-clinical setting

A significant proportion of requests for assistance arose from matters outside the clinical setting, which would normally be outside the scope of MPS membership. These included a range of driving-related offences, theft, sexual misconduct and accessing extreme/child pornography.

Convicted

The nature of the cases in which the member was convicted all related to personal conduct and can be summarised as follows:

• Causing serious injury by dangerous driving and sentenced to a custodial sentence – suspended by the Medical Practitioners Tribunal Service (MPTS).
• Failing to provide a specimen (under S7 of the Road Traffic Act [1988]) – suspended custodial sentence (12 months) – MPTS imposed conditions.
• Driving under the influence of alcohol: banned for nine months with a fine – the GDC concluded the case with a warning.
• Viewing indecent images of children under 16 – suspended custodial sentence (eight months) imposed – MPTS outcome unknown.
• Charges of common assault and criminal damages – sentenced by way of a community order – GDC case ongoing.

Caution/fine

• Alleged misappropriation of opiates when dealing with health problems – the police case was closed with a conditional caution – the GMC case is ongoing and is being considered as a health case.
• Driving without appropriate car tax; failure to register a new address and other DVLA infringements – case closed by way of a fine – the obligation to self-refer to the GMC was not triggered.
• Police caution for theft – GMC case ongoing.

Acquitted at trial

A member was acquitted at trial in relation to a driving-related offence. MPS assistance has been confined to the GMC investigation, which is ongoing.

In summary

Police investigations into allegations of gross negligence manslaughter are thankfully rare. Our analysis has, however, highlighted the risk of allegations of sexual assault – which are more common – and it is important to be aware of this and know how to protect yourself. Read our article, “Learning from allegations of sexual assault”, to find out more about this.