A Defining Sentence

In Ipswich Crown Court on Friday, an optometrist was found guilty of the crime of manslaughter by gross negligence, and handed down a suspended two year jail sentence, as well as an order to carry out 200 hours of unpaid work.  During an eye examination, she had failed to detect a sinister clinical sign whose recognition should have prompted her to make an urgent hospital referral.

What do you understand by the term manslaughter?

Chambers:  manslaughter the slaying of a man: unlawful homicide without malice aforethought.

Bloomsbury: manslaughter the unlawful killing of one human being by another without advance planning.

Oxford: manslaughter the crime of killing a human being without malice aforethought, or in circumstances not amounting to murder.

And, since the Oxford has raised the other m word: murder the unlawful premeditated killing of one human being by another.

Interestingly, Churchill’s medical dictionary is far more detailed in its consideration of what might constitute an unlawful killing that is short of murder:

Manslaughter the unlawful killing of one human being by another in circumstances devoid of premeditation, deliberation, and express or implied malice.  Involuntary m. 1 The unintentional killing of another by an individual committing an unlawful but not felonious act or an unlawful act not usually associated with potentially lethal injury, such as striking and killing a pedestrian while operating a vehicle in excess of the speed limit.  2 The unintentional killing of another by an individual committing a lawful act in which the requisite skills or necessary precautions associated with the act have not been deployed, such as the intraoperative or postoperative death of a patient undergoing surgery performed by an intoxicated surgeon or one under the influence of drugs, if no extenuating circumstances existed…

We begin to build up a sense of what sort of act might constitute manslaughter.  Man walks into a pub, drinks eight pints of lager, then gets into his car, drives through a 30 mph built-up area at 60 mph, knocks down and kills a pedestrian.  That is manslaughter.

I must admit the Churchill dictionary entry caused me to raise an eyebrow.  Since when was striking a pedestrian while operating a vehicle in excess of the speed limit “not usually associated with potentially lethal injury”?  And I suppose it is possible to conceive of an extenuating circumstance in the case of the intoxicated surgeon whose patient dies on the table or shortly after.  But it’s a bit of a stretcher; maybe he was off duty, celebrating a birthday out in the wilderness, suddenly called upon to carry out a piece of heroic life-saving surgery because nobody else was available.  But I digress.

The point about all these definitions is that manslaughter, though falling short of murder, is a serious crime.  The judge at Ipswich Crown Court clearly thought so.  He invited the jury to consider whether they were sure that the defendant’s conduct was “something truly so exceptionally bad and in the circumstances gave rise to a serious and obvious risk of death… (and) was in your judgement enough to amount to the very serious crime of manslaughter…  It may be that you answer no to any questions – in which case you will be led to a verdict of not guilty… Mistakes, even very serious mistakes, and errors of judgment, even very serious errors of judgment, are nowhere near enough to found a charge of gross negligence manslaughter.  Even if you have found there is a breach of duty, you still have to go on to consider if it is so bad as amounts to a criminal offence.”

The jury found the defendant guilty.

I must say that I found this conclusion so odd that I took the trouble to read a full report of the trial, which I found in the periodical Optometry To-day.  I found myself in not unfamiliar territory.  You can’t have a career in emergency medicine and not find yourself summoned as a witness to various sorts of court, District Courts, Crown Courts, High Courts, and the Medical Disciplinary Committee of the General Medical Council.  Those of us who have not been in the dock (yet), know that that is at least to some extent down to luck, and maybe the grace of God.

I am not about to offer any opinion on the Ipswich case of which I have no special knowledge, other than of the information which has been reported in the public domain.  Yet any experienced medical practitioner reading a report of this kind will recognise certain recurrent themes.

The most important point of all is that a court of law is seldom a good place in which to establish what happened in an episode of medical care that has gone badly wrong.  The best environment in which to establish the truth of the matter, is within the confines of a medical Morbidity & Mortality (M & M) Meeting.  M & M Meetings in hospital, and in General Practice, are routine.  They do not merely examine medical error, adverse outcomes and fatalities; but also interesting or unusual cases, conditions that are seldom seen, and episodes from which everybody may learn something for the future.  Success stories are included – good outcomes can be educational too.  And it is always good to present a case which at first sight looks commonplace and mundane – it often turns out not to be so.

The prerequisite, the sine-qua-non, of an M & M Meeting is that it be non-judgmental.  You may say we run into a difficulty here: how can we be non-judgmental if somebody is guilty of criminal activity?  The more frequently asked question is, how can we be non-judgmental if somebody has shown themselves to be clinically incompetent?  The answer is that an M & M Meeting voluntarily suspends judgments of morals or competencies at least until an agreement has been reached about the facts of the case.  The agenda is not to finger-point, rather to dissect the anatomy of an episode of care so that future mistakes may be avoided by all.

So M & M Meetings are formal and structured.  They always follow the same format.  The case is presented – the patient demographics; the presenting complaint; the history; allied histories – past, therapeutic, familial, social.  Then the clinical examination findings.  Then the investigative diagnostic endeavour, the diagnostic formulation, and from it, the proposed treatment or management strategy.  The patient’s progress, further interventions according to response, and a description of outcome whether it be toward recovery, or further debility, and demise.  Lastly, an overall attempt at summation.  What happened and why?  What have we learned?  And, if indicated, what can we do to prevent a recurrence?

None of this happens in a Court of Law.  The whole attempt at recreating the case is replaced by a harangue between two combative opponents intent on convincing a jury of the validity of their own narrative.  The prosecution will say that the defendant is careless, slapdash, negligent and incompetent, to the extent that their behaviour is criminal; the defence will say that the errors that have occurred were systems errors, an unfortunate concatenation of small adverse events that unfortunately and uniquely resulted in this tragic accident.   Scrutiny will concentrate on a specific episode: did the defendant look at the right digital image?  Did the defendant carry out a mandatory examination?  Was it thorough enough?  All this, when the jury is not privy to the overall picture.  What was the diagnosis?  What was the pathophysiological process?  What happened to the patient between the examination and his death?  It is the cardinal mistake of the microscopist who switches immediately to a high-powered field without looking at the slide macroscopically, thus potentially missing something glaringly obvious.

M and M Meetings take place shortly after the events they choose to analyse – usually within a calendar month.  In the Ipswich case, the optometry examination under scrutiny took place on 15/2/12, and the case came to court on 5/7/16, that is, 4 years and 5 months later.  It is hardly surprising that the answer to many questions was, “I don’t remember.”

A case in an M & M Meeting might be presented and discussed in 20 minutes.  The Ipswich trial started on July 5th and ended on July 13th.  This is not to say that a Court of Law should not take all the time it needs, merely to point out that a trial of this nature frequently lasts one to two weeks, while the defendant whose actions are being scrutinised was constrained to conduct a consultation and perhaps make several decisions in the course of fifteen minutes.

M & M meetings are designed to get at the truth.  Criminal Trials are designed to allow two individuals to compete to impose their version of the truth upon a jury.

And the jury?  Is it really appropriate to ask a group of lay people to study pictures of papilloedema, and make value judgments about cup-disc ratios?

The avoidable death of an 8 year old child is a terrible tragedy.  Our hearts go out to the boy’s family and loved ones.  His parents expressly wished that the defendant in this case, herself a parent, be spared a custodial sentence.

But it is also a tragedy that our legal system is not very good at uncovering the truth.  M and M meetings uncover the truth, not in order to charge somebody with manslaughter, but to attempt to lessen the chances of a recurrence of the incident; yet not – as is so often heard outside court rooms – so that “it may never happen again.”  That is beyond the scope of human achievement.

The oddest aspect of all lies in the concluding remarks of the judge.  “I have therefore reached the conclusion and sentence you on the basis that there is no obvious explanation for your breach of duty.  You simply departed from your normal practice in a way that was completely untypical of you – a one off for no good reason.”

There’s an expression of complete bewilderment if ever there was one.

 

 

 

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