Civil liability of doctors arises when there is a clinically negligent act or omission resulting in harm as a consequence of a doctor not meeting the standard of care as expected from reasonable medical practice or failure to warn.1 Do clinical errors and mistakes necessarily equate to negligence? The essential elements required to establish negligence, are: (1) the existence of a duty of care owed to the patient; (2) a breach of duty as determined by standard of care; (3) the patient has experienced harm; and (4) a causal connection, between the defendant’s careless act and the resulting damage incurred with the damage considered foreseeable and not too remote.2 In Hatcher v Black,3 Lord Denning explained a case that a woman P, who suffered side-effects from an operation on her throat and sued the surgeon concerned. Denning J stated that:
“…on the road or in a factory there ought not to be any accidents if everyone used proper care, but in a hospital there was always a risk. It would be disastrous to the community if a doctor examining a patient or operating at the table, instead of getting on with his work, were forever looking over his shoulder to see if someone was coming up with a dagger. The jury should not find the defendant negligent simply because one of the risks inherent in an operation actually took place, or because in a matter of opinion he made an error of judgement. They should find him liable only if he had fallen short of the standard of medical care, so that he was deserving of censure…”
(The jury found in favour of the defendant).

According to the Bolam test,4 “a doctor will not be found negligent if he/she has acted in accordance with a practice accepted as proper by a reasonable body of medical opinion”. It appears unreasonable or of limited social value to impose a criminal sanction on a medical practitioner for genuine clinical errors and mistakes.

The majority of litigation, following alleged medical malpractice, is brought under the tort of negligence (civil claims) and the remedy sought is monetary compensation. Criminalisation of medical malpractice falls into the realm of retributive justice which is a system of criminal justice focusing solely on punishment, rather than deterrence or the rehabilitation of offenders. The punishment should be in proportion to the seriousness of the crime committed.5 The negligent act should be culpable to constitute a criminal act, such as gross negligence manslaughter (GNM).6 This raises pertinent issues and questions in health care, such as: Is criminal prosecution really promoting patient safety and safeguarding public interest? Should the focus be on conduct rather than outcome? Should the use of restorative justice, emphasising retribution, surpass deterrence and rehabilitation?7

An expert panel conducted a pre-recorded seminar, followed by an interactive panel, to analyse GNM, in the healthcare setting, across different common law jurisdictions (including Australia, England, Hong Kong, Singapore and the United States) in November 2021.8 A paper is under preparation which reports the critical points of those presentations, together with further analyses of cases and literature in jurisdictions adopting common law, to provide a better understanding of how clinical negligence might lead to criminal proceedings. This editorial aims to recap the English case of Bawa-Garba,9 to discuss the factors to be taken into consideration for medical crime. There were a number of high-profile criminal investigations and prosecutions of healthcare professionals (HCPs) in England, with no offence recorded in Scotland and only 14 HCPs being charged with offences of criminal negligence in Canada and just over 30 GNM prosecutions since 1830 in England.7

In the Garba case,9 the jury found the defendant paediatrician’s conduct to be “truly exceptionally bad” (meaning it was far below the standard of care expected by a competent paediatrician and that it amounted to the criminal offence of GNM). The literature has raised criticisms of the findings for failing to give due consideration to organisational factors, such as system failure or lack of permanent supporting staff.6 10 The Box summarises the negligence of the defendant doctor and factors contributing to her negligence.

The investigations and prosecutions regarding Garba were perceived as arbitrary and inconsistent.11 This resulted in a rapid policy review, as described in Gross Negligence Manslaughter in Healthcare in 2018.12 The panel was clear that HCPs could not be, or be seen to be, above the law and should be held to account where necessary. It was equally evident that HCPs are working in the complexity of a modern healthcare system, under a stressful environment and this should also be taken into consideration when deciding whether to pursue a GNM investigation. Doctors who have made an erroneous or suboptimal decision, without the intent to harm, acted in a manner that arguably does not rise to the level of criminal blameworthiness.13

A negligent doctor should not be held criminally liable for a brief lapse of concentration or an inadvertent error of judgement and it has been argued that three factors: (1) awareness; (2) choice (choose to run the risk); and (3) control (has the opportunity to act differently) should be present for the establishment of the negligent conduct to be considered culpable within the criminal context.13 An error is trying to do the right thing but performing same wrongly which does not reflect an intentional deviation from accepted practices.14

Would Garba9 be ruled differently, with consideration of culpability and violation of the three factors of awareness, choice and control? Dr Bawa-Garba’s fitness to practise had been found to be impaired causing her suspension from practising for 1 year by the tribunal. The General Medical Council appealed, on the ground that the tribunal should have ordered her to be erased from the register and substituted the sanction of erasure for that of suspension.15 The ruling led to a backlash from doctors who believed that she should not have been singled out for punishment because of the multiple system failures which led to the boy’s death. Dr Bawa-Garba finally won an appeal against being struck off, restoring the 1-year suspension.16 The judgement states that the task of the tribunal was to decide what sanction would “most appropriately meet the overriding objective of protecting the public.”16 Taking into account the particular circumstances of this case and the aggravating and mitigating factors, the Court of Appeal felt that erasure was not necessary to meet the objectives of: protecting the public; maintaining public confidence; and promoting and upholding proper professional standards. The Court considered that the expert tribunal was entitled to form the view that a suspension order could meet these statutory objectives.

Dr Bawa-Garba is now back at work and has finished her specialist training.17 The main lessons learned are: to analyse all circumstances; to assess whether the negligent act is truly exceptionally bad; and whether there were extenuating circumstances that need to be taken into account.

Concept or design: All authors.
Acquisition of data: All authors.
Analysis or interpretation of data: All authors.
Drafting of the manuscript: A Lee, T Cheung.
Critical revision of the manuscript for important intellectual content: All authors.

All authors had full access to the data, contributed to the study, approved the final version for publication, and take responsibility for its accuracy and integrity.

All authors have disclosed no conflicts of interest.

This editorial has been presented in the Gross Negligence Manslaughter Seminar and Panel Discussion: Reflection from different Jurisdictions adopting Common Law organised by the Centre for Health Education and Health Promotion of The Chinese University of Hong Kong and co-organised by the Centre for Medical Ethics and Law of The University of Hong Kong, New Medico-Legal Society of Hong Kong, American College of Legal Medicine, the Australasian College of Legal Medicine, and the Healthcare Division of Allied World Assurance Company held in November 2021.

This editorial received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

The opinions expressed reflect the views of the authors not the institutions to which they are affiliated.

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2. Jones M, Dugdale AM, Simpson M. Clerk & Lindsell on Torts. 23rd Edition, London: Sweet & Maxwell; 2020.

3. Bolam v Friern Hospital Management Committee. 1 WLR 582; 1957.

4. Hatcher v Black. The Times. 2 July 1954.

5. Meyer JF. Retributive Justice. Encyclopedia Britannica, 12 Sep 2014. Available from: https://www.britannica.com/topic/retributive-justice. Accessed 6 Jan 2024.

6. Lee A. Key elements of gross negligence manslaughter in the clinical setting. Hong Kong Med J 2023;29:99-101. Crossref

7. Farrell AM, Alghrani A, Kazarian M. Gross negligence manslaughter in healthcare: time for a restorative justice approach? Med Law Rev 2020;28:526-48. Crossref

8. Anawis M, Beran RG, Cheung T, Ho C, Kim H, Lee A. Gross Negligence Manslaughter Seminar and Panel Discussion: Reflection from different Jurisdictions adopting Common Law. November 2021. Available from: https://www.chep.cuhk.edu.hk/GNM/. Accessed 15 Jan 2024.

9. R v Hadiza Bawa-Garba. EWCA Crim 1841; 2016.

10. Cohen D. Back to blame: the Bawa-Garba case and the patient safety agenda. BMJ 2017;359:j5534. Crossref

11. Lee DW, Tong KW. What constitutes negligence and gross negligence manslaughter? In Chiu JS, Lee A, Tong KW, editors. Healthcare Law and Ethics: Principles and Practices. Hong Kong: City University of Hong Kong Press; 2023.

12. Department of Health and Social Care of the United Kingdom. Gross Negligence Manslaughter in Healthcare. The Report of a Rapid Policy Review. June 2018. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/717946/Williams_Report.pdf. Accessed 25 Jan 2025.

13. Robson M, Maskill J, Brookbanks W. Doctors are aggrieved—should they be? Gross negligence manslaughter and the culpable doctor. J Crim Law 2020;84:312-40. Crossref

14. Merry A, Brookbanks W. Violations. In: Merry and McCall Smith’s Errors, Medicine and the Law. 2nd Edition. Cambridge: Cambridge University Press; 2017: 141-82. Crossref

15. GMC v Dr Bawa-Garba. EWHC 76 (Admin); 2018.

16. Hadiza Bawa-Garba v GMC. EWCA Civ 18979; 2018.

17. Dyer C. Hadiza Bawa-Garba can return to practice under close supervision. BMJ 2019;365:l1702. Crossref