Garg v R.

In sentencing for manslaughter by gross medical negligence, the court must make an individual assessment of culpability. The Criminal Justice Act 2003 requires direct attention to the fatal harm caused and has increased the punitive element of homicide sentencing. Those principles apply to gross-negligence manslaughter generally, including medical cases; there is no special exception for medical practitioners. Prolonged failures to respond to clear clinical risks may substantially aggravate culpability. Altering medical records to conceal neglect is a serious aggravating feature. The court must also give proper weight to mitigation, including remorse, a guilty plea, loss of career and personal consequences.

The appellant, a consultant urologist of good character, pleaded guilty to the gross-negligence manslaughter of a hospital patient. Over a weekend, he failed adequately to investigate her deteriorating condition, identify a closed renal infection and sepsis, or secure timely drainage or transfer. The patient died after treatment was delayed.

After her death, the appellant altered and substituted medical records in an attempt to conceal neglect. At Leeds Crown Court, Globe J imposed two years’ imprisonment after allowing full credit for the guilty plea. The appellant appealed on the ground that the sentence was manifestly excessive, relying on personal mitigation, the consequences for his career and family, psychiatric difficulties, and delay.

1. Appeal dismissed. The two-year sentence was not manifestly excessive.

2. This was not a guideline decision for all medical gross-negligence manslaughter cases. Although death is common to every such offence, culpability varies substantially between cases. There was no basis to recalibrate any established distinction between types of gross-negligence manslaughter merely because of the Criminal Justice Act 2003.

3. However, two post-2003 sentencing principles applied without a medical exception. First, section 143(1) requires direct attention to the harm actually caused, which is at the highest level where the victim has died. Secondly, Schedule 21 increased the punitive element in murder sentencing and thereby reinforced that offences causing death should generally be treated more seriously. The court applied the approach illustrated by Wood (Clive) ([2010] 1 Cr. App. R(S) 2), R v Appleby ([2010] 2 Cr. App. R(S) 46), R v Holtom ([2011] 1 Cr. App. R(S) 18) and R v Barrass ([2012] 1 Cr. App. R(S) 80).

4. The judge was entitled to adopt a starting point of three years before full credit for the guilty plea. The appellant had primary responsibility for the patient’s care. His omissions continued over a lengthy period despite repeated opportunities to identify the danger and avert it. The failures went beyond deficient supervision of junior staff.

5. It was a serious aggravating feature that the appellant altered records to create a false account of the patient’s care and his own involvement. Medical records should provide the true history of treatment. Their alteration to conceal neglect was a cover-up. The sentencing judge had nevertheless properly considered the appellant’s good character, genuine remorse, loss of career, psychiatric condition, guilty plea, delay and the severe effect of imprisonment.

• Court of Appeal (Criminal Division): dismissed the appellant’s sentence appeal in [2012] EWCA Crim 2520.
• Leeds Crown Court (Globe J): on 25 May 2012 imposed two years’ imprisonment following the appellant’s guilty plea to gross-negligence manslaughter.