Sellu is cleared of medical misconduct

David Sellu, the surgeon jailed for gross negligence manslaughter who later had his conviction overturned, has been comprehensively cleared of misconduct by a medical practitioners tribunal.

The General Medical Council alleged that he failed to provide good clinical care to James Hughes, the patient whose death had been at the centre of the criminal case against him.1 But after a six week hearing in which the tribunal took extensive evidence from many witnesses, many of them staff and clinicians working at the private hospital where Hughes had died, not one of the allegations against Sellu was found proved.

The result means in effect that charges that were found proved to the higher criminal standard (beyond reasonable doubt) by a crown court jury did not even reach the lower standard of proof applying in the tribunal (on the balance of probabilities).

The outcome will fuel concern, already widespread, about the use of the criminal law to pin the blame for a patient’s death on a single individual working in a complex system where multiple factors are at play.

The outcome will fuel concern, already widespread, about the use of the criminal law to pin the blame for a patient’s death on a single individual working in a complex system where multiple factors are at play

Hughes, 66, a retired builder, had successful knee surgery at the Clementine Churchill Hospital in northwest London in February 2010, but the orthopaedic surgeon who operated on him asked Sellu, a colorectal surgeon, to step in after Hughes developed abdominal pain a few days later. Sellu saw him on 11 February and operated the night of 12 February. Hughes died two days later.

Sellu, now 70, was convicted of gross negligence manslaughter in November 2013 and given a two and a half year prison sentence. In November 2016, after he had served his sentence, the Court of Appeal overturned his conviction, ruling that the trial judge’s direction to the jury had been inadequate.2

For the past six months Sellu has been working under conditions, now lifted by the tribunal, at St Mark’s, a specialist bowel hospital in northwest London.

At the tribunal the GMC argued that Sellu had delayed too long in operating. But the tribunal decided that he did not have a duty to perform surgery on 11 February when he first suspected that Hughes had a perforated duodenum or colon. The tribunal said it was satisfied that when Sellu received the results of a computed tomography scan the next day he took proactive steps to perform urgent surgery. The tribunal found no evidence that Hughes showed significant signs of deterioration over the afternoon before Sellu operated.

The tribunal accepted expert evidence on Sellu’s behalf, backed by research, that the actions he took were in line with the practice of a reasonable body of surgeons in 2010.

He was charged with failing to prescribe antibiotics, but the tribunal accepted that he had instructed the hospital’s registered medical officer to prescribe them and that this was in line with the practice of a reasonable body of consultants at the time.

A GMC spokesperson said, “As there remained a significant dispute about the facts it could only be resolved by referring the case to the Medical Practitioners Tribunal Service. The tribunal, after hearing from all of the witnesses and experts, has resolved the dispute of facts in the doctor’s favour.”

A government review and a separate GMC review, both led by former presidents of the Royal College of Surgeons, are looking at the use of manslaughter charges against doctors, after an outcry by the medical profession over the case of the trainee paediatrician Hadiza Bawa-Garba.3

She was convicted of manslaughter over the death of 6 year old Jack Adcock, but a medical practitioners tribunal, which examined the multiple system failures at the hospital where he died, decided to suspend her from the medical register rather than strike her off. The GMC appealed to the High Court, which decided to erase her from the register.4 Her supporters have raised more than £360 000 for a further appeal.

A spokesperson for the Royal College of Surgeons said, “First and foremost our health and legal systems must protect patients from avoidable and unnecessary harm. However, they should do this while being clear about the difference between gross negligence manslaughter, basic human error in medical practice, and where the healthcare system in which the doctor is working is to blame.

“This ruling, following the recent Bawa-Garba case, underlines the urgent need for the application of manslaughter by gross negligence to be clarified and reformed. The GMC and Department of Health and Social Care reviews must identify important learning opportunities and shed light on how cases are initiated and investigated. David Sellu’s case should now form part of these reviews.”

Rob Hendry, medical director of the Medical Protection Society, which represented Sellu and Bawa-Garba, said, “The MPTS tribunal heard all of the evidence in this case and tested it rigorously. They are best placed to weigh up all of the factors affecting a doctor’s fitness to practise.

“By contrast, a criminal court is rarely the best place to hold a doctor to account for what has happened in a complex clinical environment. There has never been a more important time to debate this issue, and we will be calling on the government review led by Professor Sir Norman Williams to address it.”