Gross Negligence Manslaughter: Is Prosecution of Doctors Always in the Public Interest and Is Specific Prosecutorial Guidance Needed?
| DOI | 10.1177/0022018320946943 |
| Date | 01 August 2020 |
| Published date | 01 August 2020 |
| Author | Kristina Swift |
| Subject Matter | Articles |
Article
Gross Negligence
Manslaughter: Is Prosecution
of Doctors Always in the
Public Interest and Is Specific
Prosecutorial Guidance
Needed?
Kristina Swift
Northumbria University, UK
Abstract
There have been recent criticisms of the prosecution of doctors for gross negligence man-
slaughter (GNM) and the Crown Prosecution Service (CPS) has been under the spotlight. The
CPS must make decisions to prosecute based on the evidential test and public interest test.
There has been much attention on the evidential stage with a focus on how the CPS approach
the threshold of GNM and the use of experts in this regard. The public interest stage by
comparison has been subject to little scrutiny and it is time to redress that balance. It is not
inevitable that the public interest test will be met in all GNM cases; the public interest test must
be satisfied to support the decision to prosecute. It will be appropriate to consider the use of
offence-specific prosecutorial guidance for assisted suicide and question whether this lends
support to the use of such an approach to guide the exercise of discretion in GNM cases or
points to a need for caution. If a specific policy was viewed desirable, the feasibility of the
undertaking must be evaluated. There is a need to critically consider the circumstances that
may lead to a conclusion that it is not in the public interest to prosecute and whether a policy
could be constructed to facilitate this task.
Keywords
Gross negligence, manslaughter, Crown Prosecution Service, public interest
Corresponding author:
Kristina Swift, Medical and Mental Health Law Research Interest Group (MELRIG), Northumbria Law School, Northumbria
University, Newcastle upon Tyne, NE1 8ST, UK.
E-mail: kristina.swift@northumbria.ac.uk
The Journal of Criminal Law
2020, Vol. 84(4) 341–368
ªThe Author(s) 2020
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DOI: 10.1177/0022018320946943
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Introduction
The prosecution of doctors for gross negligence manslaughter (G NM) has been criticised and as a
consequence the decision-making process of the Crown Prosecution Service (CPS) is under the micro-
scope. There has been much focus on the apparent unfairness of decisions reached and campaigns have
been launched in protest against the inappropriate criminalisation of members of the profession who are
simply trying to do their best.
1
It is certainly clear that there is a perception of unfairness but what is less
certain is whether this perception is fundamentally correct or based on unsupported emotive responses to
what appear to be ill-deserving cases, albeit it must be acknowledged that prosecutions are very limited
in number. The recent Bawa-Garba case
2
can be identified as the spark leading to the recent resurgence
of interest in this area. The case and the furore in its aftermath, which led to calls for reform will be
explored.
The CPS is tasked with making the decision whether prosecution should commence. There are two
stages to this process, the evidential stage and the public interest stage. The evidential stage involves an
initial evaluation of the evidence in order to determine the prospects of achieving a conviction. With
regard to GNM cases, concerns have been raised about the approach taken at the evidential stage, for
instance regarding the thre shold for GNM and the role of exper ts to inform prosecution decisi on-
making.
3
There is an understandable focus on the evidential stage given the complexity of the offence,
so it is perhaps unsurprising that the public interest stage has received comparably little attention once
the evidential hurdle has been passed.
4
It could be suggested that as the offence involves the death of the
victim, it is inevitable that there will be a public interest in prosecution. Yet the public interest test must
be applied in every case, so it is necessary to explore its application in the context of GNM and identify
whether reform is possible to provide a solution to the perceived problems.
This article will critically consider whether the existence of a specific prosecutorial policy regarding
assisted suicide lends support or points to a need for caution regarding the use of an offence-specific
policy addressing the public interest test in GNM cases.
5
The calls for reform will also be addressed.
They focus heavily on the demand for transparency in relation to how prosecution decisions are made
and it will be argued that although transparency is necessary, this alone will not provide the solution if
the underlying process is unsound. The need for realism in the quest for change must be emphasised. The
1. J Vaughan, ‘The Case of David Sellu: A Criminal Court is Not the Right Place to Determine Blame in Complex Clinical Cases’
20 March 2018. <www.blogs.bmj.com/bmj/2018/03/20/the-case-of-david-sellu-a-criminal-court-is-not-the-right-place-to-
determine-blame-in-complex-clinical-cases/> S Bosely, ‘Doctors Sign Letter Expressing Worry Over Criminalisation of
Surgeon’ The Guardian (6 August 2015) <http://www.theguardian.com/society/2015/aug/06/doctors-sign-letter-expressing-
worry-over-criminalisation-of-surgeon>; A Samanta and J Samanta, ‘Gross Negligence Manslaughter and Doctors: Ethical
Concerns Following the Case of Dr Bawa-Garba’ (2019) 45(1) Journal of Medical Ethics 10–14.
2. This case is discussed below. Dr Bawa-Garba was convicted of GNM and received a two-year suspended sentence.
3. See for example O Quick, ‘Expert Evidence and Medical Manslaughter: Vagueness in Action’ (2011) 38(4) Journal of Law and
Society 496.
4. D Griffiths and O Quick, ‘Managing Medical Manslaughter Cases: Improving Efficiency and Transparency?’ Law Research
Paper Series Paper 007 2019 (University of Bristol, 2019). Griffiths and Quick have concluded that ‘more detailed guidance
would be beneficial’ (at 23) but their focus leans towards the need for further support in relation to determining the threshold of
GNM with ‘the identification of factors which might be associated (or not) with an assessment of gross negligence’ (at 24).
There is only brief reference to the use of prosecutorial guidance in relation to assisted suicide and Griffiths and Quick state that
‘Prosecutors were wary about comparisons...mainly because Assisted Suicide largely revolves around the consideration of
public interest factors’ (at 23). By contrast, this article focuses on public interest and therefore the assisted suicide guidance
will be closely considered.
5. See O Quick, ‘Medical Manslaughter-Time for a Rethink?’ (2017) 85(4) Medico-Legal Journal 173–181, 178. Quick briefly
refers to the CPS guidance on factors for and against prosecution for assisted suicide and comments ‘one could argue, on the
same basis, why not have similar guidance in this context’. Also see O Quick, ‘Medicine, Mistakes and Manslaughter: A
Criminal Combination?’ (2010) 69(1) CLJ 186, 190. Quick asks ‘if Debbie Purdy can demand the publication of prosecution
policy in relation to assisted suicide, then why deny doctors the same service for gross negligence?’ This question is left
unanswered. This article will now explore whether public interest guidance is desirable for GNM.
342 The Journal of Criminal Law 84(4)
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