oct ewj 24 online - Flipbook - Page 69
Gross Negligence Manslaughter
and the Medical Profession
Is the Test Fit for Purpose?
Is a new approach needed?
by Rakesh Bhardwaj
MBChB MD FRCS FRCS(Ed) FRCS(Gen Surg) LLM
Consultant Surgeon
Article three of three
is blameworthy in a very different way from the electrician
who causes death by miswiring an electrical appliance with a
high degree of carelessness.” 5
Alternative concepts
Currently the law on GNM amounts to little more
than an “emotionally satisfying way to exact retribution”.1 This article focuses on critically analysing those
elements of proposed changes. We start with an analysis of the role of the Law Commission proposals and
why their recommendations have been largely been
set aside. There is then an exploration of how the inclusion of culpability would change the focus of the
test. A discussion regarding a return to recklessness
follows. We address widening the offence to include
non-fatal harm. How other jurisdictions have addressed the offence is then investigated. The chapter
finishes with evaluating academic proposals for
change.
A further concern from the Law Commission was connected with liability for omissions. Professor Glanville
Williams expressed his concern against recommendations against statutory formulation of the duty to
act:
“If the top lawyers in a Government committee find the law
hard to state clearly, what hope have the Stone and Dobinsons of this world of ascertaining their legal position, in advance of prosecution, when they find themselves with a
hunger-striking relative?” 6
The Law Commission (Law Com No237) then went
on to make several recommendations. These included
the creation of two different offences of unintentional
killing, based upon different fault elements, rather
than one single broad offence: Reckless Killing and
Killing by Gross Carelessness.
Is there someything better?
Revisiting the Law Commission Proposals
It seems somewhat regrettable that The Law
Commission (Law Com No237) proposals for reform
have been largely ignored yet seem now very attractive
propositions.2
These recommendations were modified in the
subsequent Law Commission consultation paper No
177 (2005) where the above two new proposed offences that were suggested should be abandoned such
that manslaughter existed as a separate but narrowly
defined offence.7 In their new proposals they
outlined:
“We are provisionally proposing an offence of manslaughter
that covers blameworthy conduct that causes death but conduct
that does not involve an intention to kill, an intention to cause
serious harm or reckless indifference to causing death. The
offence would encompass causing death:
The Law Commission recognised that the breadth of
the offence of GNM was too great. Lord Lane CJ
remarked:
“It is a truism to say that of all the crimes in the calendar, the
crime of manslaughter faces the sentencing judge with the
greatest problem, because manslaughter ranges in its gravity
from the borders of murder right down to those of accidental
death. It is never easy to strike exactly the right point at which
to pitch the sentence.” 3
Both culpability and awareness of risk were then highlighted, which would provide guidance to juries trying
to apportion blame.
“Gradations of culpability based on varying degrees of
intention should, therefore be incorporated into the definition
of offences…” 4
1. through gross negligence
2. by an act intended to cause some, but not serious, physical
harm, or
3. by an act foreseen as involving risk of causing harm,
whether or serious harm, provided the act is itself a criminal
offence.” 8
A proposal to separate offences was that different
types of conduct should have different fault labels. It
was highlighted that:
“The accused who sets fire to his house so that the council will
rehouse him, knowing that his wife and children are asleep
inside and that they will be certainly killed or seriously injured,
EXPERT WITNESS JOURNAL
They focused their proposals for when a defendant is
guilty of manslaughter through gross negligence:
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