In November 2013 a jury at the Old Bailey found surgeon David Sellu guilty of gross negligence manslaughter (GNM). Sellu had performed emergency surgery on the patient James Hughes who had suffered a bowel perforation, but he subsequently died from multiple organ failure. In court, the original case against him was “proved” to be of a criminal standard because of the delay in getting the patient to theatre and for failing to ensure the provision of timely antibiotics. Sellu was widely regarded as a gentle family man, a great teacher, and a gifted surgeon. The case sent shockwaves across the medical profession. Convinced of his innocence and appalled at the negative implications his conviction would have on the whole profession, his friends and family raised funds to instruct new lawyers. Later on, backed by his defence organisation, we launched a legal challenge in the Court of Appeal. This led to the only successful “out of time” appeal in recent history of a medical GNM conviction. In the opinion of many, myself included, Sellu was dealt out an injustice, but he did have the support of colleagues and the resources to appeal. How would another fellow professional fare without such backing?

Sellu’s experience raises significant concerns about the wisdom of complex cases of medical error being tried in criminal courts. There were multiple parties looking after Mr Hughes, a patient with a number of comorbidities. Yet at trial, much of this was oversimplified. After the original judge summed up the case, the jury asked him “Are we deliberating legalities or judging as human beings?”, a question which illustrated their struggle with the task. The judges from the Court of Appeal later concluded that the jury were not sufficiently guided in how to identify the line separating an error of medical judgment from conduct which was truly, exceptionally bad and amounted to being criminal.

We were driven early on by our discovery of several items of evidence that had not been considered at the original trial. For instance, Mr Hughes had been given the anticoagulant dabigatran without Sellu’s knowledge. The presence of this drug could have had serious implications, creating the risk of surgical haemorrhage if Mr Hughes had gone to theatre earlier. The role of this drug was simply not considered by the court. Although the criminal process is an adversarial one, it should be carried out with all the potentially relevant medical evidence. The evidence included cirrhosis of the liver and inappropriate use of certain statistical scoring systems

We are all human and doctors make mistakes. Yet errors made without malice or intent should not be punished by prison, loss of livelihood, and the inevitable psychological trauma. Sellu’s case demonstrates that a criminal court is not the right place to hear complex medical evidence. A jury in 2013 found Sellu guilty of a criminal offence, yet an MPTS panel in 2018 found no misconduct against him in the same case. This area of law has always been controversial. Either it needs to be removed, or strict guidelines should be applied in its use. This case shows medical GNM should not be used in complex cases with multiple co-morbidities, many participants, complex pharmacology or significant systemic failures. There is also widespread concern that this law has been used in cases like that of Hadiza Bawa-Garba, where there was a clear back-drop of inadequate patient monitoring, senior support, and IT failure.

There have been serious concerns about the role of the General Medical Council (GMC) in the recent Bawa-Garba case and her erasure. Both Sellu and Bawa-Garba are black and minority ethnic (BME) doctors who gained their medical degrees from UK medical schools. All of us should be concerned that BME healthcare professionals might be being disproportionately brought before the courts and regulators for investigation. I make no allegations of racism; however, it seems to me that we need to urgently investigate  this issue before more charging decisions are made. Currently, the GMC is trying to gain automatic erasure when a doctor is convicted of a serious criminal offence. Sellu’s appeal would have been even more challenging if automatic erasure was in place. If the GMC are truly committed to the safety of patients and the public, they must focus on broader and system errors when mistakes happen. Loss of confidence in the regulator will threaten patient safety.  Proposals to have “safe spaces” where doctors can report safety concerns, along with the creation last year of the Healthcare and Safety investigation Branch (HSIB), may hopefully assist with paving the way towards  a “just culture” in healthcare.

As Sellu told me last month: “After eight long years of trauma for me and my family this is over. I saw this patient out of duty and did my best for him under difficult circumstances. I was held solely responsible for his death. I was sent to prison for something I did not do and my career ended. My criminal conviction was overturned yet the GMC pursued me. All charges were found not proved, the same charges that I went to prison for. My family and friends have stood by me throughout these difficult times and I am grateful to them for their support.”

As a friend of Sellu, I have had the good fortune to be closely involved in the fight to put right some of the injustice that has been meted out to Sellu and his family. He should not have been solely blamed for this tragedy and is so very sorry that Mr Hughes died on his watch. He would like to continue to express his sympathy to his family for their loss.

Jenny Vaughan, Chair, Friends of David Sellu and consultant neurologist. 

Competing interests: I led the medical side of David Sellu’s appeal and chaired the campaign group “The Friends of David Sellu”. I am a medical law campaigner.