A new dawn in my fight for justice
Surgeon Mr David Sellu, convicted for gross negligence manslaughter of a private patient – overturned on appeal after a 30-month prison sentence – finishes his serialised story with events following his release from jail.
I came out of prison in February 2015, but was not allowed to travel abroad until May 2016, the end of my sentence.
For a 30-month prison sentence, I had served half, or 15 months, behind bars and would do the remainder out in the community on licence.
Travel was nevertheless permitted to other destinations in the country with prior arrangement with the approval of my probation officer.
I was required to see my probation officer once a month and was obliged to inform him every time I left home if I was going to stay the night elsewhere. This served as a constant reminder that I was still a prisoner.
Permission to leave home
If I infringed these conditions, I would be arrested and returned to prison. My wife Catherine and I decided to go to Hayling Island for one night during the summer of 2015 and she did the booking online.
My usual probation officer was away at the time, but he had informed me that he did not want me to seek permission to go away but merely to inform him where I was going, for the record.
He had warned me during our previous meeting that he would be taking time off to go on holiday, but would pass my case to his deputy. I rang the deputy on the morning of our proposed departure and was subjected to intense interrogation.
What was my full name? What was the crime I was serving time for? Where was I going? How were we going to get there? What were the precise address and the phone number of the hotel we were going to stay in? Did we have any connections there? What were the precise day, date and time I would be returning home? And much more.
My appeal process
While I was in prison, a group of my friends teamed up with my family and started a long appeal process to have my conviction overturned.
It was felt that I had been unfairly targeted for prosecution in such a complex case and been convicted by a jury who did not understand what they were deliberating on.
Moreover, those so-called experts who had given evidence against me did not understand their remit: their duty was to be objective and judge me on the evidence against the standards of practice prevailing at the time the alleged offence took place.
As my defence barrister at the Medical Practitioners Tribunal Service (MPTS), Mr Ian Stern QC, pointed out at the later hearing, it was not about what the expert would have done or what theoretically the ideal management would have been, but what a reasonable group of surgeons would have done in the circumstances, given the state of knowledge, the prevalent practice at the time and the resources available to them.
The Empey report, which featured prominently in this case, failed utterly to disclose systemic errors on the part of the hospital. At the time of preparing the appeal against my conviction, we applied for and obtained documents and emails that had been exchanged between the investigators leading this inquiry.
The clinical specialist interrogator sent one telling email to his colleague. It read:
‘Dear Mike,
‘. . . It looks like the problem is systemic, in that DS (David Sellu) answers confirm he has difficulty getting anaesthetists …
‘. . . The challenge is to know whether the problem is systemic i.e. within CCH (Clementine Churchill Hospital) or just with DS. I suspect the latter and we have no real knowledge of the former’ [my emphasis].
Leave to appeal
My friends were not alone in fighting my case. While the press had been hostile towards me prior to this point, some papers began to express doubts about the prosecution of my case once they became aware of some of the facts in this patient’s management.
We continued to fight the case and in December 2015 three judges headed by Lady Justice Heather Hallett granted me leave to appeal my conviction. The appeal was heard in the Royal Courts of Justice before the President of the Queen’s Bench Division, Sir Brian Leveson and Lord Justice Irwin and Mr Justice Globe.
On 15 November 2016, my conviction was quashed. In passing judgment, the judges were critical of the prosecuting barrister, the prosecution experts and the trial judge in the conduct of my trial.
As I have mentioned previously, the jury in my trial had told the judge that they did not understand what they were deliberating on, but the judge had failed to give adequate guidance on which to reach a judgment. This is what the appeal judges had to say:
‘In the circumstances, we do not believe that Mr Sellu had the benefit of sufficiently detailed directions to the jury in relation to the concept of gross negligence contained within the offence of gross negligence manslaughter.’ [Neutral Citation Number: (2016)EWCA Crim 1716].
Travesty of justice
This travesty had taken place in the Old Bailey, the highest criminal court in the land.
The Crown Prosecution Service (CPS) were given the opportunity to decide whether they wished to retry me, but they wrote the next day to say that they did not.
There were several reasons given in newspaper reports for why the CPS had not conducted a retrial: this case was no longer in the public interest; the family wanted to draw a line under this matter and wanted it closed; ‘Mr Sellu has already served his sentence’.
One sacred tenet in English law is that one is innocent until proved guilty in a court of law. I was therefore cleared of the manslaughter of Mr Hughes and it was obviously a relief to know that I was no longer seen a killer.
As far as I know, there are only two reasons why the CPS prosecutes cases: it is in the public interest and there is a realistic prospect of a conviction.
I do not recognise any of the other justifications quoted by the papers, particularly the last one about my serving my sentence. Surprisingly, this was repeated by a senior lawyer from the CPS at a meeting I spoke at the Royal Society of Medicine in 2017.
To say that I had served my sentence is a statement that implies that somehow I had been punished for something I had done wrong. I had served a sentence, not my sentence.
No apology
The CPS did not want to rerun this case because there was now no possibility that they would win, but they were not prepared to admit this. I received no apology and no compensation for wrongful imprisonment.
Moreover, the CPS did not retract any of the caustic comments they had been so quick to make shortly after my conviction and imprisonment, nor did they issue any clarification that I am aware of that I was now an innocent person.
Doctors were being urged to issue apologies when things went wrong, to exercise what was referred to as ‘the duty of candour’. It appears that when the CPS made mistakes, they exempted themselves from this duty.
This was not the end of the matter, however. I was summoned by the MPTS to an Interim Order Tribunal at the beginning of February 2017 at which they would look at my GMC registration in the light of the quashing of my conviction.
Suspended from register
It was noteworthy that from the time I was charged with manslaughter and perjury in 2012 to this point, I had been suspended from the register and was therefore not permitted to practise my profession.
My solicitor wrote to warn me to expect a difficult time ahead because the expert report into my handling of the deceased patient’s case was very damning.
The meeting lasted one day and after arguments by the GMC barrister and counter-arguments by mine, the tribunal restored me on the register but with stringent conditions.
In effect, I could start working again as a surgeon but only under close supervision, with a long list of the things I was not allowed to do unless my supervisor was in the room with me.
I returned to work, initially at St George’s Hospital in London and later at St Mark’s Hospital as an honorary consultant surgeon. It was strange going in for clinical work again after a break of nearly five years.
Some things never changed: the outpatient clinics, for example, were as busy and chaotic as they were when I last worked and most people were just as pleasant. Doctors, nurses and other healthcare staff worked equally hard trying to get increasing numbers of patients through theatre with dwindling resources.
Frustrating technology
On the other hand, technology had moved forward significantly, and was now more frustrating and pervasive.
There was so much reliance on computers that hospitals were completely paralysed when, as happened shortly after I returned to practice, the IT systems failed in several hospitals in the country, following a malicious virus attack.
Manual laboratory and radiology requests were now almost completely replaced by electronic ones and, in many cases, the results were now also shared digitally. In my discipline of colorectal surgery, the proportion of patients having laparoscopic or keyhole surgery for abdominal problems had increased.
Multidisciplinary teams (MDTs) had all but replaced the individual as the decision-maker. MDTs lasted about two hours before busy clinics back in 2012, but now they took up the whole morning.
Defensive practice
I got the feeling that doctors were afraid to take clinical actions until they had discussed their case in an MDT, expecting perhaps that others would share the blame for any complications that occurred.
There was now evidence of defensive practice, in which doctors were always looking over their shoulders in case they made mistakes and did tests and operations more to cover their own backs than for the benefit of the patients.
I was told that this was because of the ever-present threat of complaints, litigation and referrals to the GMC. Such defensive practices were sometimes harmful to patients and wasted resources.
But I was grateful to all the doctors and administrators who welcomed me back to doing something I had always enjoyed – surgical practice.
Unreliable witness
As expected, the GMC decided to take my case to the MPTS for a Fitness to Practise hearing. I was finally able to sit in the same room as the GMC expert and, for all the criticisms of me, he came across as out of touch and was deemed an unreliable witness by the panel.
There were 11 charges and these were systemically found not proved by the panel. A long list of witnesses were called, some of whom were interviewed by video link and phone.
Two witnesses who were involved with the care of the patient who died had moved abroad: one to Singapore and the other to Portugal. They gave their evidence by video.
In the end, I was exonerated of all blame in the management of Mr Hughes and my name restored to the medical register with all conditions removed.
Behind bars, I had missed birthdays and anniversaries and, importantly, my son’s graduation from the University of Manchester after six years of hard work. During my trial, James had been in the middle of preparing for his final examinations.
Some days he would come to court all day, go back to Manchester in the evening and to lectures the next day. I was worried that this would impact adversely on his performance, but I was relieved and proud that he qualified as a doctor in the summer of 2014. He came to see me when I came home on temporary leave from prison in August 2014 and asked to talk to Catherine and me.
We were a close-knit family and I always encouraged our children to come to us with their problems. But we also allowed them to make decisions regarding the courses they wanted to do at university and the jobs they wanted to pursue.
Source of pride
James had chosen to read medicine and it was a source of pride for me to know that he had put Manchester, my old medical school, as first choice.
Now I was home, James had something to tell me. His voice faltered at first, but he went on to explain what was on his mind. ‘Mum, Dad, I do not want to pursue a career in medicine. I want to get out,’ he said.
He was looking at Catherine and then fixed his gaze nervously on me. He did not wait for a reaction, but went on to say that he had seen how humiliated I’d been during the course of the investigation and particularly the trial.
In his words, I had given my entire professional life to the practice of medicine and, as he now reminded me, I’d made sacrifices, which included missing out on birthday celebrations, sports days, and nativity plays. Yet, because of a single incident, my previous track record and my contribution to society in general had amounted to zero when it came to mitigating my sentence.
If this was what he could expect from the profession, then he was not prepared to start his foundation hospital training.
Catherine looked at me to say something, which I now did. I reminded James that as a 24-year-old, he had spent six years in medical school, equivalent to a quarter of his life and much of the whole of his adult life. He had invested a huge amount of time and effort to his studies and he was going to be encumbered with over £80,000 of debt in the form of a student loan.
But he had made up his mind and nothing we said would change that. He later went into business and never again set foot in a hospital to work. For our part, we had no choice but to respect his decision. Medicine had lost another doctor, and we were convinced that James would have made an excellent doctor.
Adapted from Did He Save Lives? A Surgeon’s Story, £9.99, Sweetcroft Publishing ISBN 9781912892327 from Amazon
Thanks to:
My wife, Catherine and our children: Amy, Daniel, Sophie and James;
My brother Denis and family; Brothers-in-law Tom and Tony Campbell and family; Dr Jenny Vaughan and husband Mr Matt Dunckley.
Lawyers: Mr Mark Ellison QC (QEB);
Mr David Emmanuel QC (Garden Court Chambers); Mr Matt Foot (Birnberg Peirce); Ms Cassandra Dighton; Mr Hugh Davies QC (Raymond Buildings); Mr Ian Stern QC (2 Bedford Row); Mr John Mitchell and Mr Simon Turner (Weightmans); Mr Andrew Truby and Ms Jane Lang (BLM).
The Medical Protection Society:
Dr Rob Hendry; Dr Tom Lloyd; Dr Zaid Al-Najjar.
Friends: Mr Ian Franklin; Prof Peter Taylor; Mr Peter McDonald; Prof Roger Kirby; Dr Frank Geoghegan; Dr Miranda Harvie; Dr John Vogel; and countless others who offered support