DOCTORS, dentists and surgeons should not be charged with culpable homicide over medical blunders if they did not intend to harm a patient, one of Scotland's top clinicians said today.

Professor David Galloway, president of the Royal College of Physicians and Surgeons Glasgow (RCPSG), said a "genuine blame free culture" in the NHS was in the best interest of both patients and medics because it would lead to a culture in which "lessons can be learned and patient safety enhanced".

It comes after it emerged that the Crown Office has ruled out criminal charges against an obstetrician, Dr Vaishnavy Laxman, who faces being struck off over alleged blunders which resulted in a baby boy being decapitated during delivery at Ninewells Hospital in Dundee.

HeraldScotland: Professor David GallowayProfessor David Galloway

In Scotland, health professionals suspected of killing patients as a result of negligence can be prosecuted for culpable homicide. This is equivalent to gross negligence manslaughter in England and Wales.

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Prof Galloway said the current legal position allowed individual clinicians to be saddled with the responsibility for "systemic challenges beyond their immediate control".

He said: “We believe that there is a strong argument to be made that gross negligence manslaughter, or culpable homicide in Scotland, should not be a criminal offence within the clinical context.

"There is real merit in the argument of Sir Ian Kennedy QC, who stated that 'medical manslaughter means you can pick someone, blame them and imagine you have solved the problem'. This is the wrong approach.

“It is with this in mind that we need to establish how best to ensure that the role of system failure in medical negligence cases is properly examined and recorded.

“Most of all, we need to see real leadership within the medical community in order to re-establish a genuine blame free culture in the NHS in order to protect the best interests of patients and clinicians alike."

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It comes as the RCPSG wrote to the Williams Review - which is probing negligence law in relation to healthcare across the UK - to say that prosecutions should be based on an intent to do harm, not errors.

In its submission, the College said: "There are certainly errant doctors who should be charged with this type of offence (manslaughter).

"What should distinguish these individuals from those who are put in an impossible situation and have made a mistake or mistakes? It is surely the intent to do harm."

It added that the current "trigger for a prosecution is not clearly defined" in the UK, but added that "having taken advice, the threshold for prosecution in the Scottish Jurisdiction may be higher".

In Scotland, there have there have been no convictions of culpable homicide in a medical setting to date.

Unlike England and Wales where there is no requirement for intent, recklessness, or public interest to prosecute, in Scotland it must be established that the accused has committed an unlawful act. In turn, a person's death must be the direct result of that unlawful act, and the unlawful act must have also been intentional, reckless, or grossly careless. 

There have previously been calls for England and Wales to bring its law into line with Scotland's tougher culpable homicide terms. 

However, there has also been a push to introduce corporate manslaughter - an offence which does not exist in the UK.

As the College notes in its submission, there is "no practical mechanism for NHS Trusts and Boards to be held accountable" when system failures result in tragedy.

Prof Galloway said the profession's confidence in the General Medical Council, the industry regulator, was "at an all-time low" in the wake of controversial cases including that of trainee paediatrician Dr Hadiza Bawa-Garba.

Dr Bawa-Garba was found guilty of gross negligence manslaughter and suspended from the medical register for 12 months, following the death of a six year old boy at Leicester Royal Infirmary in 2011.

In January, the GMC won a High Court appeal that resulted in her being permanently erased from the register.

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This sparked a backlash from doctors angry that the junior medic was carrying the can for systemic flaws including an under-staffed paediatric unit and IT glitches which delayed vital test results.

Meanwhile, a fitness to practice tribunal into Dr Laxman heard last week that she pressed on with a vaginal delivery instead of a caesarean in March 2014 despite warnings from colleagues and the infant being in breech, having an abnormally low heart rate and the mother's cervix being only 2-3cm dilated.

In harrowing evidence, the tribunal was told how the boy's head became trapped and was left behind in the womb when Dr Laxman pulled him out by his legs.

READ MORE: Baby 'accidentally decapitated' in botched delivery at Ninewells

The mother is suing NHS Tayside for medical negligence damages after Scottish prosecutors ruled out culpable homicide or a Fatal Accident Inquiry.

Charlie Massey, chief executive of the GMC, said: "The GMC does take systemic issues into account when investigating, and have in recent years reduced by 54 per cent the number of investigations where there has been a single clinical incident.

"We have told the Williams Review that human factors training will be built into the training of our case examiners and pool of medical experts. Systemic issues at the hospital where Dr Bawa-Garba was working were also taken into account by the Crown Court and subsequent court hearings."