The definitive sentencing guidelines for manslaughter (including gross negligence manslaughter) came into force in November 2018. Whilst the release notes emphasise that sentences for some cases of gross negligence manslaughter offences may increase, for example in cases where the fatal neglect is persistent, serious and for financial gain, nothing was mentioned about some alterations to the sentencing formula which may assist healthcare professionals.

In a welcome development since the publication of the draft guidelines, the new guidelines include a set of mitigating factors, clearly aimed at providing some relief for those working in healthcare. These mitigating factors now include:

  • Attempts to assist the victim.
  • Self-reporting and/or co-operation with the investigation.
  • For reasons beyond the offender's control:

    • the offender lacked the necessary expertise, support or training which contributed to the neglect;
    • the offender was subject to stress or pressure (including from competing or complex demands) which related to and contributed to the negligent conduct;
    • the negligent conduct occurred in circumstances where there was reduced scope for exercising usual care and competence.
  • The negligent conduct was compounded by the actions or omissions of others beyond the offender's control.
  • The offender lacked the necessary expertise, equipment, support or training which contributed to the neglect.

Not all of these factors were present in the draft guidelines, but were seemingly introduced at the consultation stage. However, given the media coverage of the cases of the optometrist Honey Rose and paediatrician Dr Bawa-Garba, it should perhaps not come as a surprise that the Sentencing Council (who are an independent, non-departmental body of the Ministry of Justice responsible for issuing guidance on sentencing) has taken the opportunity to recognise and introduce factors that would protect, to a certain degree those facing sentencing after conviction; particularly given the increasing pressures on healthcare providers.

On the other hand, the recognition that 'human factors' (the context of mistakes) are an important feature in sentencing for gross negligence manslaughter, may push the spotlight from an individual and onto the management of the organisation instead. As the recent, and much publicised, issues at a London Cardiac Unit have highlighted, healthcare organisations should be alive to 'human factor' allegations. Consequently, it would be prudent for organisations to identify these issues early on (for example during Serious Incident or near-miss investigations), if only to explore and rule out some of the most common. So far, we have seen staffing levels being identified and included reasonably frequently. For ambulance Trusts this might mean including the number of vehicles waiting at hospitals, and for acute hospital Trusts this might be the number of senior staff on-call, or in the hospital itself, or identifying the risk assessment undertaken in relation to medical devices, medicines and storage. Identifying the human factors/context early, will allow organisations to accurately record the facts and implement improvements, but it may also provide a measure of protection for organisations against potential future prosecutions (by taking management action when a human factors problem is identified).

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