Ms Rose is an optometrist who failed to spot during a routine eye test that eight-year-old Vincent Barker had a condition that would lead to his death.
Murder involves intentional killing. If someone is grossly negligent and death results, this is manslaughter. A number of doctors – mostly hospital doctors – have been convicted of manslaughter. In most cases, they have received suspended prison sentences, but in 2013, a surgeon was given an immediate two-and-a-half year prison sentence.
Ms Rose – who will be sentenced at Ipswich Crown Court next month – was the first optometrist to be charged with manslaughter. To the best of my knowledge, only one pharmacist has faced trial on a manslaughter charge in modern times.
The case involved the supply of 100mg of morphine sulphate tablets (MST), when 10mg had been prescribed, and the pharmacist was acquitted. But present-day attitudes to healthcare professionals mean that it seems inevitable that a pharmacist will be charged with manslaughter at some point in the future.
Not all negligence is manslaughter
It is important to bear in mind that not all negligent acts will be treated as manslaughter if a patient dies. Firstly, the negligence must actually cause or be a contributory factor in the patient’s death. Secondly, the negligence must be “gross”. In other words, it must be so bad in all the circumstances that a jury would regard it as criminal.
A selection error or a labelling mistake would probably not be gross negligence. However, if a pharmacist fails to consult a patient’s summary care record and supplies penicillin to a patient who is allergic to it, there is a real risk of being charged with manslaughter.
The same might apply in a case involving a lack of candour – for example, if a pharmacist realises that an error has been made, but fails to inform the patient or take adequate action to prevent harm being caused.
The risk of a manslaughter prosecution can be reduced if healthcare professionals acknowledge errors, and act promptly if there is still time to minimise harm. The Crown Prosecution Service should keep in mind that everyone makes mistakes, and that healthcare professionals are doing their best to help, not hurt, patients.
I believe it is wrong to send healthcare professionals to prison for manslaughter. Regulators such as the General Pharmaceutical Council have powers to prevent unsafe registrants from practising, and that is surely sufficient.
David Reissner is senior healthcare partner at law firm Charles Russell Speechlys ([email protected]).