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In an article published in the JRSM, Volume 99, Ferner and McDowell adopted a literature review of doctors charged with manslaughter since 1795. From a reading of their article it is possible to determine that they arrived at the following conclusions. First, that there had been a significant increase in the prosecution of doctors for gross negligence manslaughter since 1990; second, that the majority of these doctors should not have been prosecuted; third, that the Crown Prosecution Service (CPS) has failed to abide by its own prosecution Code; and fourth, that we have charged doctors as ‘an emotionally satisfying way to exact retribution... ’
We question the methodology, analysis and conclusions reached by the authors. They relied for the most part on newspaper reports, a notoriously unreliable source, for an accurate account of the allegations. In every case all the evidence is considered by experienced doctors before any prosecution is commenced.
We apply the criminal law on gross negligence manslaughter as we are required to do, yet Ferner and McDowell criticise us for not using the criteria of ‘mistakes, slips (or lapses) and violations’, tests that are unknown to the criminal law.
Ferner and McDowell have failed to understand the CPS ‘realistic prospect of conviction’ test and have applied a simplistic numerical test against all the cases they could identify. The test is whether in this particular case there is a realistic prospect of conviction, not whether half of all defendants are convicted.
The suggestion that, by charging doctors with manslaughter, the CPS is somehow seeking some emotional satisfaction in retribution is self-evidently bizarre and entirely unsupported by any evidence.
Competing interests Stephen O'Doherty is Deputy Director of the Special Crime Division of the CPS.