When Mr David Sellu, an experienced and respected colorectal surgeon, was found guilty of the manslaughter of one of his patients by gross negligence, I noticed that the judge, in sentencing him to two and a half years’ imprisonment, said that the patient in question might have died anyway.
This struck me immediately as rather odd. If he might have died anyway, how could it be known for certain that Mr Sellu killed him by his alleged negligence? And if a crime could not be said to have been committed beyond reasonable doubt, how could a man be guilty of that crime beyond reasonable doubt?
The law on manslaughter by negligence applies the following four tests:
1. The defendant owed the victim a duty of care.
2. The defendant breached that duty.
3. The breach caused (or significantly contributed to) the victim’s death.
4. The breach was grossly negligent. And it is a matter for the jury to determine whether the breach was grossly negligent.
In Mr Sellu’s trial, there was a lot of discussion as to his patient’s chances of survival if he, Mr Sellu, had conducted the case as he should have done (he has admitted that in some respects his treatment was seriously deficient). Not even the prosecution’s experts argued that the patient’s chances of survival were 100 per cent if he had received the very best treatment known to surgical science. On the contrary, they were very much lower than that, though precisely how much lower is a matter of debate.
A man is still guilty of murder or manslaughter if he brings forward, by only a short time, a death that is imminent in any case. To decide whether Mr Sellu brought forward the death of his patient required that the time of his patient’s death, but for his allegedly negligent treatment, should have been known: not roughly, but precisely, for the criminal law, to obtain a conviction, requires guilt beyond reasonable doubt.
It is possible, perhaps even likely, that, but for the defects of Mr Sellu’s treatment, his patient would have survived. But possibility or likelihood are not the test: the test is indubitability.
If it cannot be said that anything that Mr Sellu did, or failed to do, was beyond reasonable doubt responsible for or even significantly contributed to his patient’s death, what of the second requirement for a conviction, namely that his negligence was gross and not just, say, a lapse of concentration or judgment such as we are all sometimes guilty of, but which usually has no such serious consequences?
Surely the word implies recklessness or indifference to the consequences of an act or omission? Such conduct was completely uncharacteristic of Mr Sellu, who had had a blameless career of 40 years and was known by colleagues and patients alike as a kind and careful man. Even the best of people may have lapses from their own high standards, but usually they do not, all of a sudden, become reckless or utterly indifferent to the welfare of others. In other words, it is possible that Mr Sellu was for once negligent, but not criminally so.
I have quite often been asked to look into cases of alleged medical negligence, and in only one case that I remember can the negligence have been said to rise to the level of criminality. It never reached the criminal courts because it was settled before there was any public exposure, which the hospital offered a generous sum to avoid, complete with a gagging clause.
Even in ‘ordinary’ negligence cases, however, I sometimes wonder how fair or just the test is. I suspect that if you examined the notes of 100 medical cases, you would find possible negligence in the great majority of them, say 90: a question not asked, or if asked the answer not recorded, an examination not done, a result disregarded, a possible diagnosis overlooked, an unnecessary and potentially dangerous prescription (as many prescriptions are), and so forth, a superfluous or wrong procedure performed. One gets to see only the cases in which the negligence has had bad consequences. Most negligence goes unremarked and unpunished: the human being is a tough organism and can withstand quite a lot of medical error.
I have often wanted to perform the following experiment: to give experts the records of 10 similar cases to examine, one of which had a tragic outcome, but with the denouement excluded from the records to be examined. Would they be able to spot before being told the case with the tragic denouement?
As often as not in the cases in which I have been involved, the bad outcome has not been the result of the negligence of a single person alone, but of a cascade of errors not only human but systemic. It often requires an unhappy coincidence of error, ignorance, disorganisation or stupidity to produce an unhappy outcome. In most deaths caused by the mistaken spinal injection of vincristine, the error is a compound one. If it takes the coincidence of error in two people to cause a fatality, and each of them makes an error in one in 100 cases, there will be a fatal error in one in 10,000 cases, unless something else is done to avoid it.
But Man is a blame-affixing animal. Affixing blame is fun and in some cases profitable: moral outrage is one of the few emotions (the other being resentment) that will never let you down. We need scapegoats to reassure us that, but for malice or other human vices, all would be well in our lives.
Mr Sellu has admitted that, if he had a patient again such as the one who died (not that he intends to return to surgery, he was of near retirement age anyway), he would act differently. In the meantime he has been to prison for 15 months, a terrible experience for such as he, and then had his conviction quashed. It is difficult not to conclude that he has been the victim of a gross miscarriage of justice.
Now what I want to know is which barrister, which judge, which juror will go to prison for it?