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Mr O'Doherty glosses over our most obvious finding: more and more doctors are being prosecuted for gross negligence manslaughter. The Crown Prosecution Service (CPS) cannot confirm or refute this, because they do not keep relevant statistics. We hope this will change.
Mr O'Doherty criticizes us for using the published evidence to classify the aetiology of acts that have led to manslaughter charges. We recognized the difficulties with this approach in our article. We maintain that a doctor who makes a slip of the sort that is inevitable in human actions should not be judged criminally negligent, whatever dire consequences there are for the patient. This is consistent with the legal test that the CPS must of course apply, that the error was so bad that no reasonable doctor of the same level of experience, in the same situation, would have made that error.
The Code of the CPS requires that, for a case to be brought, the jury should be more likely than not to convict.1 The outcome of any individual case is binary: ‘convicted’ or ‘acquitted.’ Laws of statistics apply even to lawyers. If the probability of conviction were exactly 0.5, then there would be just a 5% chance of the observed 14 convictions in 39 cases brought since the CPS and their colleagues in Northern Ireland were set up.2 The CPS can take no comfort from the fact that nearly a quarter of recent cases were abandoned before trial or dismissed by the judge.
We impute no emotional motives to the CPS in our article. We do contrast society's desire for retributive justice with the desire to reduce deaths from errors. This is crucial. Society has to choose whether to exact retribution, or to minimize harm. All those involved need to realize that the two goals are inconsistent.
Competing interests R E Ferner has received fees for writing medicolegal reports. S E McDowell has no competing interests.