By Suzanne Ost

Two recent, controversial cases involving doctors and the criminal law have caught my attention because they could challenge our perceptions about when it is appropriate to criminalise doctors’ behaviour. We use the criminal law to hold people to account when they commit the most serious wrongs. The State acts in the name of the public and the victim to achieve justice, and to punish through penal sanction. When a doctor deliberately sets out to harm a patient, this can intuitively appear to be a sound reason for turning to the criminal law to deal with the matter. But cases where there is no such intent can be more morally challenging.

Take, first, the case of Dr Simon Bramhall, who branded his initials on the donor kidneys of two patients during transplant surgery without their knowledge or consent. He did not foresee anything more than the most superficial of harm to the surface of the livers, yet he was prosecuted for assault occasioning actual bodily harm and pled guilty to the offence of assault by beating. In passing sentence, the judge commented that Bramhall’s conduct was ‘borne of professional arrogance of such magnitude that it strayed into criminal behaviour…’. In marked contrast, a fellow surgeon asked whether the law is not ‘making an ass of itself in judging his actions to be criminal’?

In a very different case involving the criminal law, Dr Hadiza Bawa-Garba also had no intention of causing harm, but her conduct contributed to the most serious harm: the death of a young boy who was under her care. She was prosecuted for gross negligence manslaughter and the jury found her guilty. The jury was convinced by the prosecution’s case that Bawa-Garba’s misdiagnosis of the patient’s condition and failure to properly reassess him following an obvious continuing deterioration in his condition amounted to gross negligence.

If a doctor intends no harm and his actions, whilst ‘very silly’ cause minimal, superficial harm, we might feel that we have good reason to question criminalising their behaviour. And where a doctor’s serious failings significantly contribute to a patient’s death, we might consider that using the criminal law to bring them to account is justified, even when there is no intention to cause harm. But, in my paper, I argue that Dr Bramhall was rightly prosecuted and factors mitigated against Dr Bawa-Garba being prosecuted for gross negligence manslaughter.

I draw attention to public wrongs as being those that the criminal law should be concerned about. Public wrongs infringe important societal values and are wrongs that should concern all in society. Besides committing private wrongs against his patients by violating their dignity and autonomy, Bramhall’s actions were so contrary to a doctor’s fundamental obligations that there is a public interest in criminalising them. He committed a public wrong because his behaviour threatens trust in the medical profession and brings the profession into disrepute.

It is also worth noting that Bramhall’s actions did actually lead to one patient suffering psychological harm. Her liver transplant failed, and she was convinced that this was because of Bramhall’s actions (although he was not negligent in any way). She suffered constant flashbacks and nightmares, was still receiving counselling and had been unable to return to work. This impact on one of the victims was not a fact that caught the media’s attention and it only became apparent to me after I applied to Birmingham Crown Court to request transcripts of the Bramhall trial and sentencing remarks. In his sentencing remarks, the judge referred to this victim’s impact statement, in which she said that her trust in doctors had been ‘destroyed’.

Turning back to Bawa-Garba, because her actions undoubtedly contributed to her patient’s death, she also committed a private wrong against her patient. But there were numerous system failures at the hospital that day and the report that followed the Trust’s investigation recognised numerous root causes for Jack’s death, such as ‘ambiguity of the observation and escalation tools in use’ in the hospital. So Bawa-Garba’s individual failings occurred in the context of serious systemic failures that the public should rightly be concerned about. These systemic failings threaten patient safety and public trust in the health care professions and the NHS, thus making the patient’s death a public wrong too. But I challenge Bawa-Garba’s prosecution because she was not individually responsible for the totality of the public wrong committed.

What these two very different cases demonstrate is that context (what makes wrongs criminal wrongs that should concern the public), and the question of appropriate accountability, are crucial when it comes to deciding whether a doctor’s behaviour should be criminal.

Paper title: Drs Bramhall and Bawa-Garba and the rightful domain of the criminal law

Author(s): Suzanne Ost

Affiliations: Law School, Lancaster University

Competing interests: None

Social media accounts of post author(s): Twitter: @SuzanneOst3737