EWJ June 2024 web - Journal - Page 47
tionally bad”, “abysmal”, “gross negligence” and
“recklessness” have all been used interchangeably, and
rather confusingly. In R v Sellu the appeal was successful because of the failure to direct the jury in the
original trial sufficiently.11 Had the judge directed the
jury in terms of treatment being “truly exceptionally bad”
Dr Sellu might have had no complaint to appeal. In
this context gross negligence meant treatment was
truly exceptionally bad. In the appeal by Dr Bawa-Garba
Sir Brian Leveson referred to this grossness as a “truly
exceptional degree of negligence”.12 Such vituperative epithets have been commonplace and widespread: the
conduct of Drs Sullman and Prentice was considered
“merely inadvertent” whereas the conduct of Dr Adomako was “dreadfully incompetent”. Each of these terms
fails to clarify with certainty whether the conduct of
the defendant was so bad in all the circumstances. The
aptness of the phrase “distinction without difference” exposes Lord Justice Judges explanation in quashing
Misra’s challenge of the inability of the Adomako test
to meet the test of certainty required by Article 7 of
the Human Rights Act 1998.
The element of foreseeability was applied in R v Honey
Rose.14 Honey Maria Rose was an optometrist who was
convicted of the GNM of a child, Vincent Barker, who
died five months after an eye examination by Honey
Rose from the complications of hydrocephalus secondary to gliosis. At the time of the examination
Honey Rose failed to examine Vincent’s optic nerve
(either directly with an ophthalmoscope or by reviewing a digital image taken by an ophthalmic camera on
the day of the examination). Had she seen the optic
nerve it would have been obvious that Vincent had
hydrocephalus, which would have prompted an urgent referral to a suitable specialist. It was, however,
acknowledged that Vincent did not suffer from the
usual symptoms associated with hydrocephalus such
as headaches and vomiting. Honey Rose appealed her
conviction and her defence argued that she could not
examine Vincent’s eye because he was uncooperative,
moreover she was shown the fundal photographs of
another patient by mistake. Not withstanding the professional failure of care the ratio was that was Honey
Rose guilty of GNM? Did her failure to examine the
fundus satisfactorily lead to the death of child? Sir
Brian Leveson looked at the facts available to Honey
Rose at the time of the breach. At the time of the breach
she was not aware of an obvious and serious risk of death.
Had she identified a fundal problem and failed to act
she would have been guilty but she was not aware of
the risk and thus was not guilty of GNM, the factual
matrix being critical in this circumstance. Her conviction was as a consequence quashed. Her failure to conduct her examination diligently, though not criminal,
was certainly below an acceptable professional standard and thus would be amenable to professional
sanction by her regulatory body. This would seem illogical in that professional incompetence could deserve less legal redress than a diligently conducted
examination. An alternative situation could arise
where she could be not convicted. Honey Rose could
have noted the papilloedema and yet formed a belief
that this clinical finding was not of clinical significance.
It is not clear if she would have been she have been
exculpated in this circumstance.
The Perverseness of Rose
Dr Rudling was a GP who had a conversation with the
mother of Ryan Morse, a 12-year-old child, who subsequently died of Addison’s disease.12 The failure to
diagnose this rare condition was not the issue. The
prosecution of Dr Rudling for GNM was based on a
conversation that Dr Rudling had with Ryan’s mother
to discuss his symptoms and the reassurances she
gave. He died shortly after. The issue central to the
case was an allegation of omission. Her failure to respond to the concerns expressed by Mrs Morse was
suggested to be grossly negligent in either not visiting
Ryan or summoning an ambulance. The presiding
Judge looked at the principles of the test for GNM and
in this case and focused upon two issues. First, did the
breach of duty make a significant contribution to the
death of Ryan Morse? Second, whether a reasonably
prudent person would have concluded in all the circumstances that an obvious and serious risk to the life
of Ryan was present. A prosecution of GNM could not
be supported based upon the absence of a serious and
obvious risk being present at the time of the breach.
Though it was also argued that Dr Rudling should
have known of the risk; it was contended that the
vagueness of presentations of Addison’s disease led to
the expert witnesses supporting the difficulty of diagnosing the condition. The subsequent appeal by the
Crown was dismissed because the test of GNM required the risk of death at the time of the breach to be obvious. In other words was the risk of death apparent
to Dr Rudling at the time of the telephone call to Mrs
Morse? It was not. The risk is to be present, clear and
unambiguous and such that the reasonably prudent
person would have foreseen not merely risk of serious injury, but of death. Furthermore Sir Brian Leveson in his
judgement went on to say:
The above two cases differ from R v Winterton.15 Winterton was a construction site manager, a director for
Conquest Homes LLP, and had overall responsibility
for health and safety at a construction site. Mr Wortley, working for Clearview demolition, was hired by
Winterton to excavate a trench, which was not created
safely. A labourer, Mr Wilkinson, fell in the faultily constructed trench and suffered fatal injuries. The issue
central to the prosecution was that Winterton knew
the trench was constructed in an obviously dangerous
manner and breached his duty of care to the health
and safety at the site. He saw the works daily and ignored the risk. Furthermore if he did not know he
should have known and had responsibility for monitoring the work of Mr Wortley. This point in law was argued by the defence in Winterton –that the judge had
erred in law in directing the jury that they were entitled to consider that Winterton ought to have known
about the way the trenches were being dug at the time
of the breach. The prosecution countered this that it
“ At the time of the breach of duty, there must be a risk of death,
not merely serious illness; the risk must be serious: and the risk
must be obvious.”
EXPERT WITNESS JOURNAL
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JUNE 2024