1.  The recent Chester v Afshar[7] House of Lords ruling raises the possibility that from the causation point of view in medically related cases there should be an alternative to the ordinary rules of causation as proposed in paragraph 49 on page 17.

  2.  Just as it is considered a hollow duty of care for a doctor not to warn patients of material risks that may result from an operation—in the case of Chester, this being the risk of paralysis after a spinal operation—similarly it would be a hollow duty for a trust not to warn a patient about a known unsafe system of care that has the foreseeable potential to place a patient in harms way. That harm could include the possibility of death. Trusts have a statutory duty to provide safe systems of care (section 18, Health Act 1999) as well as a common law duty to provide safe systems of care (Bull v Devon Area Health Authority[8] and Robertson v Nottingham Health Authority[9]).

  3.  For example, a trust's medical director under instructions from the chief executive may suspend a consultant neurosurgeon but not arrange any similar specialist to take over the ward work and operating work of the consultant or inform the junior staff who to contact in an emergency. No resource issues are involved in the failure to appoint an appropriate replacement. An unsafe system has been created. A patient may be admitted to the suspended neurosurgeon's ward with an unusual presentation of a common problem that would have been recognised and acted upon by a consultant but not by junior, unsupervised, inexperienced staff with no senior to readily turn to for support and advice. As it is, the condition is missed and a delay in diagnosis and action takes place and when consultant help does finally arrive it is too late to save the day.

  4.  If the underlying neurosurgical condition was one where survival even with immediate diagnosis and action was 85%-90% then on normal causation principles it would never be possible to prove beyond reasonable doubt that the actions and omissions of the trust's management caused the death of the patient. It would be a hollow duty of care on the part of the trust to provide a safe system of care. The patient who had not been informed of the consultant's absence and lack of safe cover arrangements would have been denied the right to choose to go to a different hospital where there was a safe system in operation that could have saved his or her life.

  5.  Causation is easy to prove if it is a crane being knowingly operated under management instructions in an unsafe manner that drops a block of concrete onto the head of a passer by. It is less easy to prove causation through management failure if the system in the hospital is set up in a way so as not to be capable of reacting appropriately and safely to patients delivered into the care of the trust.

  6.  Should the corporate manslaughter bill causation section be modified to take on board the Chester v Afshar ruling in relation to medical manslaughter in view of the difficulties that there would otherwise be in those cases of clear management negligence but where survival from the underlying medical condition was less than 90%? Proving causation in relation to hospital acquired infection—including MRSA—may be almost impossible if the ordinary rules of causation are applied to medical cases. Should a trust's duty of care be so hollow and patients be denied justice?

8   Bull v Devon Area Health Authority [1993] 4 Med LR 117. Back

9   Robertson v Nottingham Health Authority 8 Med LR 1. Back