Cases of manslaughter are infinitely varied, and many raise exceptionally complicated questions of law and fact.
One such area is when medics, normally doctors but it can be any, are accused of failing in their duty to such a degree as to go beyond the sort of negligence that results in them being sued, or even that level of lack of care that means that they are subject to disciplinary proceedings, and into the realms of conduct so bad that it properly results in criminal proceedings.
On 31st July 2017 there was a good example of this as the Court of Appeal quashed the conviction of Honey Rose for gross negligence manslaughter.
Ms Rose was a locum optometrist in the Boots in Ipswich when Vincent Barker (aged 7) came in for a routine eye test on 15th February 2012. Ms Rose conducted the test and concluded that all was normal – although there had been some headaches over Christmas those had gone. He should return in a year for a further check.
Five months later Vincent was at school when he started vomiting. His mother picked him up and took him home where his condition got worse and was rushed to hospital later that evening. where he tragically died that night.
The cause of death was hydrocephalus – the build up of fluid in the brain. The case was unusual in that it would normally have been accompanied with symptoms such as headaches and vomiting over time. One sign would have been swollen optical discs.
Had this condition been discovered prior to the day when Vincent was sent home from school, it would have been treatable.
The Prosecution case was that Ms Rose had failed to examine Vincent’s optic nerves during the course of the eye test. She said in her evidence that she had good reason for this, mainly because Vincent was photophobia.
The Judge set out 5 issues for the jury (para 41) to determine.. These were whether the Prosecution had proved that :
(1) Ms Rose owed a duty of care to Vincent Barker;
(2) Ms Rose breached that duty of care;
(3) It was reasonably foreseeable that her breach of her duty of care gave rise to a serious and obvious risk of death;
(4) Ms Rose’s breach of her duty caused the death of Vincent Barker because it was a significant contributory factor; and
(5) Having regard to the risk of death, her conduct was so bad in all the circumstances as to amount to a criminal omission.
(1) and (4) were agreed, so the issues for the jury were (2), (3) and (5). By their verdict, the jury must have found against her on those points.
We have a factsheet on Gross Negligence Manslaughter that sets out some of the issues (books can, and have been, written about this topic).
The Court of Appeal concluded (72-94) that Ms Rose should not have been convicted as the Judge should have stopped the trial and acquitted at the end of the Prosecution case.
A key passage is at para 84 :
“The Judge appears to have led himself into error by his earlier emphasis on the fact that the question of reasonable foreseeability was an objective, not a subjective, exercise and was not to be decided by reference to “the actual knowledge of the Defendant at the time of the breach”. In so doing, the Judge appears to have confused or elided two separate matters: (a) the actual knowledge of Ms Rose at the time of the breach and (b) the putative knowledge of the reasonably prudent optometrist in the position of Ms Rose at the time. The two are quite different concepts: the former is subjective; the latter is objective. The test of reasonable foreseeability is, of course, resolutely objective and there is no question of it being decided by reference to the subjective knowledge of the person whose conduct is under scrutiny. The test of reasonable foreseeability simply requires the notional objective exercise of putting a reasonably prudent professional in the shoes of the person whose conduct is under scrutiny and asking whether, at the moment of breach of the duty on which the prosecution rely, that person ought reasonably (i.e. objectively) to have foreseen an obvious and serious risk of death“.
The conclusion on the legal issue is at para 94 :
“we conclude that, in assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty. Were the answer otherwise, this would fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter which requires proof of a “serious and obvious risk of death” at the time of breach. The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death. For these reasons, this appeal is allowed and the conviction is quashed“.
One can easily understand how difficult this must be for the family, and how complicated and difficult these cases are, but also why the Court of Appeal was right.
The judgment is well worth reading as it does set out a very good summary of the law as well.
As the Court say, that is not the end of the matter – Ms Rose may well now face a disciplinary hearing as a result of her conduct, and it may be that she is not permitted to practice again.