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Legal notes: Lessons of the Maidstone manslaughter case

Richard Wilde on how the trial of a trust and consultant collapsed – and what it would have meant if it hadn’t

A high-profile manslaughter trial that saw an anaesthetist and NHS trust accused over a woman’s death hit the headlines when it collapsed earlier this year.

The case, linked to the tragic death of schoolteacher Frances Cappuccini hours after she had given birth, were unprecedented.

Maidstone and Tunbridge Wells trust became the first ever NHS body accused of corporate manslaughter, which became a crime in 2008.

Locum consultant anaesthetist Errol Cornish was separately charged with criminal negligence manslaughter after the new mother failed to wake up following an emergency caesarean section.

Although the trials collapsed when a judge ruled that there was no case to answer, this story does raise issues for those engaging in medical practice.

Criminal prosecution of medical professionals, let alone NHS trusts, has historically been extremely rare. In this case, the individual anaesthetists were charged with gross negligence manslaughter, namely causing death by acts or omissions which were grossly negligent.

Corporate manslaughter as defined in law is an offence directed at an organisation’s senior management. It means that where a style of management is a substantial element in causing a gross breach of duty, leading to a person’s death, and this is directly attributable to a senior management failure, they can be held accountable.

The trust had been charged with failing to take reasonable care to ensure that the anaesthetists involved in the care of Mrs Cappuccini held the appropriate qualifications and training for their role, and failing to take reasonable care to ensure the appropriate level of supervision for her anaesthetic treatment.

Senior management decisions relating to the employment, training, supervision and support for staff together with the implementation and adherence to protocols and policies would all have been scrutinised during the course of the trial. The trust denied the charge.

In court the prosecution needed to prove beyond reasonable doubt that there were breaches of a duty of care which resulted in the death of Mrs Cappuccini.

Any breach of this duty must also be demonstrated to have been so grossly negligent as to constitute a crime. In practical terms, these represent significant hurdles to a successful prosecution. Apart from anything else, a jury is susceptible to prejudices and will – usually – be reluctant to convict a doctor clearly working in a stressful and unpredictable professional environment.

But successful prosecutions of doctors for gross negligence manslaughter have increased in recent years.

Such cases require the clearest of evidence of breach of duty if they are to succeed.

One example, in 2013, saw a surgeon convicted for failing to operate on his patient for 40 hours despite being aware that he had a perforated bowel.

The outcome in the case of Mrs Cappuccini could have been different for a second anaesthetist, a Dr Azeez, who had returned to Pakistan. Case detail suggests that the prosecution against him would have been legally potent and proceedings may have continued had he not left the country.

But in his absence the prosecution of those concerned with Mrs Cappuccini’s care was a bold step, as the evidence wasn’t there – the very issue that led the judge to dismiss the case.

In the end it was deemed only to have satisfied one of the Crown Prosecution Service’s two charging criteria. First, is there enough evidence to prosecute? Second, is it in the public interest to do so?

If this case had indeed proceeded to a conviction it would have had widespread ramifications. It would have lowered the evidential hurdle the CPS needs to clear to prosecute a medical professional, and/or a trust. The implications of that would have been widespread and severe. As it stands the hurdle remains very high.

Yet like all organisations, senior management at NHS trusts do need to be held accountable for their actions.

Although removed from directly treating patients, their decisions and policies affect the care patients receive.

It is simply unfair to scapegoat individual doctors if senior management do not provide them with the resources and support to properly perform their roles.

With NHS trusts across the country battling with limited funding, the number of corporate manslaughter charges could increase.

A knee-jerk reaction across trusts could see qualification and training checks on all medical staff, and we may need to see the reasonableness there, particularly if it results in limitations on practices.