Position Statement on the Legal Aspects of Medical Manslaughter
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The Royal College of Surgeons of Edinburgh, the Association of Surgeons of Great Britain & Ireland, the Royal College of Surgeons of England, the Royal College of Physicians and Surgeons of Glasgow and the Federation of Surgical Specialty Associations view with great concern the recent and highly publicised instances of the criminal prosecution, for gross negligence manslaughter, of individual medical practitioners and other health professionals, notably with regard to Drs. Sellu and Rudling and the optometrist, Ms. Rose.
That concern has been heightened by the successful GMC proceedings to overturn the decision of the MPTS not to erase Dr. Bawa-Garba from the Register (GMC v Bawa-Garba  EWHC 76) after her conviction (R v. Bawa-Garba 2015). We note that Dr. Bawa-Garba has now been granted leave to appeal, notably with regard to R v. Bawa-Garba .
The decision whether to prosecute such cases requires the Crown Prosecution Service to conclude for each case not only that there is a realistic prospect of conviction, but also (and crucially), that do so is in the public interest. We are concerned that the prosecution of individual medical practitioners, in the context of systematic failings which result in tragic and avoidable deaths, not only fails to adequately address the public interest, but may have precisely the opposite effect.
Healthcare professionals, by the very nature of their occupation, must treat, as a matter of routine, members of society whose healthcare needs put them at potential or actual risk of death and life-altering morbidity. This is especially true in the case of surgeons, whose actions routinely and deliberately expose their patients to risk of harm and threat to life, in order to save or prolong life and to improve wellbeing. Modern medicine and surgery has led to the evolution of integrated systems of organizational care, so this care is almost never delivered by an individual in isolation, but as part of a multidisciplinary team, composed of members with mutually complementary roles and responsibilities, and within corporate structures responsible for the provision of training, supervision, audit and clinical governance.
Surgeons support the need for a culture of openness and transparency, set out in their statutory duty and specified in the GMC professional duty of candour (GMC 2015), not only for the benefit of those immediately affected when an avoidable death occurs, but also as the basis for establishing an appropriate environment for reflective practice, learning from mistakes and identifying shortfalls in key resources which may lead or contribute to adverse events. Other industries, notably the aviation industry, have long since recognised these principles, resulting in considerable improvements in safety.
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