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LAW & ORDER

Is Jail the Answer for Fatal Negligence?

By coincidence, Dr Feda Mulhem was sentenced to jail for the manslaughter of 18-year-old Wayne Jowett on the same day. Having already spent 11 months on remand, he did not go to prison. Again, the bereaved parents were outraged by what seemed to them, judicial leniency. ‘The sentence of eight months for the killing of my son is absolutely ridiculous,’ said Mr Jowett. And again, his reaction is understandable. What sentence could be appropriate? Wayne was finally recovering from leukaemia, his hair beginning to grow back, at the time that Dr Mulhem instructed a junior doctor to inject him in the spine with a cancer drug, vincristine, which is fatal if administered spinally.

It will be no consolation to the parents but, in both cases, the severity of the sentences has surprised many of the guilty men’s peers. Ellis, whose imprisonment led one policeman to describe his as a ‘landmark case,’ is thought to be the first teacher whose breach of the health and safety regulations has led to an immediate term in jail, as well as to professional devastation. Passing judgment, Mr Justice Morland said he had been considering a three-year sentence but had chosen the lesser one in view of Ellis’s remorse, his attempts to save the little boy, and his ruined career.

Although Ellis’s own union, NASUWT refuses to comment on his case, John Dunford, general secretary of the Secondary Heads Association, says he still considers the shorter sentence ‘utterly bizarre.’ Prison, he says, is ‘a place for embezzlers and career criminals,’ not for a teacher guilty of a fatal error of judgment. Although it is hard to think of any responsible leader behaving with such grotesque carelessness as Ellis, Dunford thinks his jail sentence could still result, in future, in teachers refusing to take the risk of escorting children on adventure trips. Is this its intended effect?

Although not unprecedented, Dr Mulhem’s sentence is also rare enough to have caused consternation among some doctors who now fear that if they were to make some catastrophic error of judgment when administering cancer – or other drugs – that they too would face not only the ultimate professional penalty, of being struck off, but a prison sentence for involuntary manslaughter.

Dr Hugh Stewart of the Medical Defence Union, which defended Dr Mulhem, will not comment on the individual case, but says, ‘You’d have to ask what the benefits of a custodial sentence are.’ Maybe if they risk eight months in prison for getting it wrong, doctors won’t be so accident-prone? Stewart points out that, ‘Medical deaths are often the result of systems error, but it’s the individual doctor who is made responsible.’

A sentence for Dr Mulhem, however well deserved it might appear, may do little to protect the public from similar accidents in future. Arguably, since there have been 13 cases of incorrect spinal injections in 15 years, with most victims dying, Wayne Jowett’s case was as much the fault of the NHS, which failed to implement adequate safety measures when they were last recommended, as it was of Dr Mulhem. Ensuring that there are no more such deaths – or individual acts of manslaughter – requires not the imprisonment of a doctor, but the introduction of incompatible connectors for intravenous syringes and spinal catheters.

Similarly, if teachers, parents and children are to find a way of continuing the British outward-bound tradition in a way everyone finds adequately risk-free, the lesson we learn from Max Palmer’s death should perhaps be that every trip must be led by someone especially trained in such activities, not that the jails await enthusiastic, unreliable volunteers such as Ellis.

Still, even if the imprisonment of individuals such as Ellis and Dr Mulhem serves no useful purpose, either personally or professionally, that is not necessarily the point, is it?