CHFG: Keeping you out of prison since 2018

Dr John Adomako was born in Ghana in 1940 and studied medicine in the Soviet Union. On graduating, he moved to the UK where he worked in locum posts, mainly in anaesthesia. He held no postgraduate qualifications and was never a member of any professional association. He had been reprimanded for failing to attend lectures, and his basic medical knowledge had been openly declared as deficient by some senior colleagues. In 1987, he was employed as a short-term locum anaesthetist at the Mayday Hospital in Croydon. No references were taken up before his appointment.  During a surgical procedure at the Mayday, Adomako failed to notice that the anaesthetic breathing system had become disconnected. His patient, 33-year old Alan Loveland, suffered catastrophic brain injury and died six months later. Adomako was prosecuted and given a 6-month suspended prison sentence.

In the human factors world, the concept of no-blame culture is an article of faith. The vast majority of preventable harm is down to system design, and systems don’t get fixed by blaming or targeting individuals. There are system weaknesses visible even in the brief summary of the Adomako case that his punishment could never fix. But is there a level of personal negligence so severe that it crosses a line into criminality? If so where should that line be drawn?

Adomako’s actions that day helped to answer that question, in law at least. His conviction and subsequent appeal established the basic principles of the common law offence known as Gross Negligence Manslaughter (GNM), which have been in force more or less unchanged ever since. In essence, a defendant is guilty of GNM if they have breached their duty of care in a manner “characterised by gross negligence, and therefore a crime”.

GNM is a dog’s breakfast. It’s an exhibition of the common law at its worst; it’s the unprincipled privileging of harm over culpability. These are not my words, but those of senior academics in the criminal law, and it’s hard to argue otherwise. This is a very bad law indeed.

Most obviously, the test for GNM is completely circular. In essence, it is a crime if the jury thinks it ought to be a crime. It is a serious homicide offence with no strict definition, tried on the basis of “you know it when you see it”. It has been argued the accused cannot even know if their conduct is a crime until the jury have declared it to be so, which is literally Kafkaesque.

Second, there is what you might call the event horizon. A criminal offence will usually sit between other offences of greater or lesser seriousness. Attempted murder may be pleaded as some type of assault, for example. The threshold for GNM is the boundary between one of the most serious offences in the book, and ‘accidental death’. An enormous cliff edge of consequences, based on a subjective test.

And third, criminality depends on death. You can be appallingly negligent and reckless, and cause all kinds of harm to your patient, but if they survive, it’s not a lesser crime, it’s no crime at all. This is what is meant by ‘privileging harm over culpability’.

Yet prosecutors in England seem unusually eager to bring charges under this terrible law. Between 1994 and 2018, 38 deaths led to the prosecutions of 47 healthcare workers. A glance at comparable common law jurisdictions shows what a massive outlier this is. Scotland has no offence of GNM, and there have been no convictions of health workers under the closest equivalent. Canada has brough 14 prosecutions in 100 years with 1 conviction, Australia has brought 30 prosecutions in 200 years with no convictions.

And another thing is clear: juries in GNM trials never acquit. Some cases have been dismissed by judges, and in some the charges were dropped mid-trial. But if it goes before the jury, doctors always go down. If the answer to the question is always the same, then maybe it’s the wrong question.

In the end it took the most egregious example to provoke change. The conviction of Hadiza Bawa-Garba was the most perfect case of punishing an individual for a catalogue of systemic and human factors way beyond their control, and it unleashed a storm of protest.

In response, the then health secretary Sir Jeremy Hunt ordered what became the Williams Review. The Clinical Human Factors Group were represented on the advisory panel via our founder Martin Bromiley. Our influence is clear in the report’s recommendations, which include:

• Systemic issues and human factors will be considered alongside individual actions”
• Relevant bodies to “promote greater understanding…of systemic and human factors”
• Use of “human factors and ergonomics experts” during investigation and at trial
• Require expert witnesses to “consider the role of systemic and human factors”

So systems-based thinking has finally caught up with the criminal justice system. But with what impact?

Data is hard to find, and cases take a long time to come to trial and public attention, but since 2018 the rate of police investigations has plummeted from 30-40 per year down to single figures, and no prosecutions have reached trial. Given the preceding state of affairs this is nothing less than seismic.

We didn’t change the law. GNM is still defined by the woolly and immeasurable criteria established in R v Adomako. But we used our influence to ensure it is used more sparingly, and that tragic incidents are treated with the systems-based analysis that we know is more likely to lead to safer care. The worst excesses of this dog’s breakfast are behind us, largely thanks to CHFG.

If you are a lawyer or a coroner, and you feel your profession could benefit from a wider understanding of Human Factors principles, don’t hesitate to reach out. We are happy to  provide speakers for educational events and conferences, as well as other forms of support.

And if you are a clinician who is not currently in jail, may I point you in the direction of the ‘Donate’ button at the top of the page?