David Sellu | When Should Doctors be Tried in Criminal Court?


It is rare for medical decisions made by doctors to be tried in a criminal court but in November 2013 a jury at the Old Bailey found David Sellu, an experienced consultant specialising in gastrointestinal and colorectal surgery with a previous 40 year impeccable record of care, guilty of gross negligence and convicted him for manslaughter. Sellu’s name has since been cleared following a period of imprisonment, leading to debate amongst health professionals as to whether or not medical errors amount to criminal acts, and whether some of us are more likely to be convicted in a criminal court than others.

The Case of David Sellu

David Sellu
David Sellu

Sellu’s patient, 66 years old James Hughes, tragically died at the private BMI The Clementine Churchill Hospital Harrow in London in 2010. Following routine knee replacement surgery, Hughes complained of abdominal pain and was transferred to Sellu’s care, as an abdominal specialist. Mr Hughes had suffered a bowel perforation unrelated to his initial surgery which Sellu operated upon, but he later died from multiple organ failure. In court, Sellu was found guilty of manslaughter because he was held responsible for the delay in getting the patient to theatre and for failing to ensure the provision of timely antibiotics. However, the judge also admitted that Mr Hughes may still have died – even if he had been afforded the best possible care. This case has sent shockwaves through the medical community.

Sellu served 18 months in Belmarsh Prison – the most high security prison in the country – alongside terrorists and rapists. However, certain of his innocence, Sellu’s family and close colleagues began an appeal which they eventually won. The judges from the court of appeal stated that the jury in the initial trial were ill-informed when deliberating their verdict, failing to truly understand the complexities of the medical case.

It was later uncovered that following the incident, the private hospital carried out an internal second investigation into the patient’s death which found a number of systemic hospital errors which contributed to the tragedy. Surprisingly the findings of this investigation were not provided to the court. Sellu was cleared of misconduct in 2018, but has not received any compensation nor has he received an apology.

Jenny Vaughan, friend and colleague of Sellu’s, who chaired the campaign group “The Friends of David Sellu” asserts,

We are all human and doctors make mistakes. Yet errors made without malice or intent should not be punished by prison, loss of livelihood, and the inevitable psychological trauma. Sellu’s case demonstrates that a criminal court is not the right place to hear complex medical evidence. A jury in 2013 found Sellu guilty of a criminal offence, yet an MPTS panel in 2018 found no misconduct against him in the same case.

Jenny Vaughan, Neurologist, 2018

Accountability

Of course, someone or something has to be held accountable for medical errors in order to prevent similar mistakes from happening in the future and to provide patients and their loved ones with justice and closure. However, when errors of clinical judgement are made within a setting that relies entirely upon inter-connected operational systems and teamwork, how does holding a single individual culpable and detaining them benefit the patient, their loved ones or future patients?

Sellu asserts that little was learned from his ordeal, and instead of sending doctors to prison, the healthcare system should facilitate an environment in which professionals can own up to their mistakes to stop similar faults from happening again. In this instance, the patient’s family didn’t receive any real answers and the failings highlighted at the private hospital where this incident occurred have not been rectified. Additionally, Sellu contends that, although it is said that the number of people affected by gross negligence manslaughter is small, it is clear that fear runs through the profession. This culture of fear, whereby doctors are apprehensive when it comes to doing the job they were trained to do, is of detriment to patient care.

Sellu’s son wanted to pursue a career in medicine and has since abandoned this dream because of his father’s experience. Surely, the last thing Britain needs right now is to further deter those considering training as doctors.

Institutional Racism?

It doesn’t seem right to consider whether or not doctors should be tried in criminal court without acknowledging the recent case of Dr Hadiza Bawa-Garba – aspects of which are eerily similar to Sellu’s.

In 2011, under Bawa-Garba’s care, six-year-old Jack Adcock died of organ failure as the result of sepsis following a bout of pneumonia. Bawa-Garba certainly made grave errors of judgement. However, as with Sellu’s case, there were significant system failures that contributed to the patient’s death: Bawa-Garba had recently returned to work after 15 months maternity leave and she was an overstretched junior paediatrician working on a ward she was not familiar with, with inadequate senior back-up. There were also IT failures across the hospital that day resulting in delayed investigation results. With this in mind, Bawa-Garba was still found guilty by a criminal court jury of gross negligence manslaughter.

Hadiza Bawa-Garba

Although Bawa-Garba has recently been reinstated and can practice once again (under close supervision), the General Medical Council (GMC) appealed for her to be struck off rather than suspended. Similarly, the GMC continued to pursue fitness-to-practise proceedings against Sellu after the conviction was quashed. The GMC has since lost its right to appeal to the High Court against decisions made by medical practitioners tribunals following an outcry from many within the medical community. Surely a regulator that instills fear within its community, as opposed to encouraging health professionals to reflect and learn from their mistakes, is exacerbating the risks of further errors – with potentially devastating consequences?

The cases of Sellu and Bawa-Garba sparked an investigation into the treatment of black and minority ethnic (BAME) doctors. The report found that doctors from ethnic minorities are twice as likely to face disciplinary action as their white counterparts and Sellu accuses the profession of institutional racism. It’s difficult to argue scapegoats weren’t needed in both cases. London-based doctor, Saleyha Asan shares her experience as a BAME doctor in a recent Guardian opinion piece, stating “I always suspected BAME medics were treated differently. Now I know it’s true.”

Interestingly, concerns were raised about Ian Paterson – a breast surgeon sentenced to 20 years in prison after knowingly carrying out hundreds of needless operations – as far back as 2003. Although there were no deaths, here was a surgeon intentionally causing his patients physical and psychological trauma, yet he was not investigated by the GMC until 2011, despite several internal and external investigations and complaints from patients, GPs and other surgeons.

What Can We learn?

David Sellu contends that “doctors do not want to be above the law”. And we agree that of course, they shouldn’t be. However, a blame culture in which an individual is held solely responsible when something goes wrong, as opposed to an investigation into system-wide failures, is counterproductive.

It is also of paramount importance that our medical regulators and legal systems are able to identify the difference between an error of medical judgment and aberrant conduct which can truly be categorised as criminal – such as that of Ian Paterson. Surely it is only the latter that should be tried in criminal court?

Sellu shares his experience in his book, ‘Did He Save Lives? A Surgeon’s Story.’