What do pharmacists need to know about manslaughter charges in light of the recent Hadiza Bawa-Garba case? Pharmacy law expert Noel Wardle explains all

The prosecution of healthcare professionals for manslaughter has been in the spotlight recently. Firstly there was the case of Honey Rose, an optometrist working for Boots who failed to spot an eye defect during a routine eye test. The patient – a child – later died and it was alleged that, had the eye defect been detected, the patient’s underlying (fatal) condition would have been identified and the child’s life saved. Honey Rose was prosecuted for manslaughter and found guilty, but her conviction was overturned in the Court of Appeal in 2017.

More recently, the case of Hadiza Bawa-Garba has been widely reported. Dr Bawa-Garba was convicted in November 2015 of manslaughter in relation to the death of a six-year-old boy under her care in February 2011. As a result of her conviction, Dr Bawa-Garba was suspended from practice by a fitness to practise committee, but the General Medical Council (GMC) appealed that sanction and, in January 2018, the Court of Appeal replaced the suspension with a striking off.

Manslaughter criteria

Any case involving the death of a patient is obviously tragic. For healthcare professionals, it also brings with it the risk of a criminal prosecution as well as potential consequences for that professional’s continued practice. A healthcare professional convicted of manslaughter will almost certainly face a custodial sentence (albeit, perhaps, one that is suspended) and will be struck off their professional register.

For a healthcare professional to be convicted of manslaughter, a jury would have to be sure that:

  • There was a duty of care owed to the patient by the healthcare professional
  • The duty has been breached
  • It is reasonably foreseeable that the breach gives rise to a serious and obvious risk of death
  • The breach, in fact, caused (or significantly contributed to) death

In terms of the breach of the duty of care, the conduct of the healthcare professional must be so bad in all the circumstances as to amount to a criminal act or omission. The professional’s negligence must go beyond a mere matter of compensation and must be ‘truly and exceptionally bad’ so as to justify the conclusion that it amounts to a crime.

It is extremely rare for pharmacists to face a charge of manslaughter. Whilst a patient’s death might be investigated as a potential manslaughter, very few cases against pharmacists come before the courts. In fact, I only know of two cases of pharmacists being prosecuted for manslaughter: one in 1866 and one in 1988. In both cases the pharmacist was acquitted.

It may be that this is because the most likely failure by a pharmacist that could cause death would be a dispensing error and a dispensing error in and of itself is unlikely to be considered ‘truly and exceptionally bad’.

Consequences of Bawa-Garba case

The case of Dr Bawa-Garba has received such negative publicity that the current health minister Jeremy Hunt has stated in Parliament that the Department of Health and Social Care (DHSC) will urgently review the law around manslaughter by healthcare professionals.

The General Pharmaceutical Council (GPhC) has also commented on the Dr Bawa-Garba case with reference to its proposals to introduce a system of revalidation. The GPhC has sought to reassure pharmacists that a peer review of the pharmacist’s clinical practice and the recording of reflections should not give pharmacists cause for concern in light of the case.

In my view, the GPhC is right to reassure pharmacists about the potential consequences of the proposed revalidation system. It is difficult to imagine a scenario where the revalidation process itself could lead to a manslaughter conviction where no conviction would have occurred otherwise. Prosecutions against pharmacists for manslaughter will remain incredibly rare, and revalidation is unlikely to change that.

Noel Wardle is a Partner with law firm Charles Russell Speechlys LLP, specialising in pharmacy law and practice.