oct ewj 24 online - Flipbook - Page 73
consequences of their actions, and showed insufficient
concern for their victims, the majority would support
a conviction. This could also, more controversially,
apply in those where the patient was subjected to serious harm. But what of those defendants who were
oblivious to the risk of death and working in a pressured anxious environment? Their culpability might
be less, but still merit a conviction of GNM. Whilst
some favour separate, clearly defined offences of RM
and GNM, it may not be attractive and clarification of
culpability in the test of GNM would not necessitate
this separation. It is unlikely that recklessness as a
separate test will usurp GNM entirely.
2007 The Corporate Manslaughter and Corporate
Homicide Act 2007 may have applied.66 It would be
difficult to see how wilful neglect, which is a conduct
crime and requires a subjective awareness of the risk
of harm that results in no harm, would result in criminal sanction. It would be difficult to prove. Similarly
regarding ill treatment being a conduct crime would
infer it is the conduct not the outcome that results in
criminal sanction.
Other jurisdictions: what we can learn?
France has a model that is inquisitorial. Expert
witnesses, appointed by a juge d’instruction (JI) advise
the judge ahead of a trial. In France negligence not
resulting in death can be criminalised. This differs
from the UK in that negligent actions that do not result in death are dealt only through the civil route.
This would seem that the French judicial system criminalises substandard care that results in serious harm
in addition to death. This is attractive to those that
wish to widen the scope of the offence of GNM.
Widening the Offence – Non-Fatal Harm
The current test of GNM has difficulty differentiating
between culpability and exculpation.54 If a doctor
treats a patient negligently and in doing so the death
of the patient occurs, he may be subjected in the Adomako formulation to a criminal conviction, even if there
is a mistake from a systems failure and death results
from an excusable error.55 But in the circumstance the
patient survives he would escape criminal censure and
be only subjected to civil and regulatory sanction.
Quick referred to this as an “all or nothing scenario”56.
This is illogical as the culpability of the doctor in either
circumstance is equal; merely the outcome is different. Smith too challenged this flaw of GNM, criticising an offence where chance may play a large part. 57
As Brazier and Alghrani had pointed out: “A doctor so
accused is always in a sense unlucky, as it is not the degree of
his carelessness but its consequences that will dictate his vulnerability to criminal charges”.58 Is the law nuanced
enough to deal with these? Consider Kay v Ayrshire and
Arran Health Board in which doctors gave an overdose
of 30 times the dose of penicillin to a little boy suffering from meningitis.59 The child survived, no less to
the skill of the intensive care team. A civil claim from
damages was limited, as it was difficult to determine
whether the effects were from the meningitis or the
overdose. However no criminal charges followed, as
the child had not died. Until 2015 the law had been
able only to punish those that willfully neglected children,60 adults who lacked capacity 61 and those subject
to the Mental Health Act 1983, but not those adults
that had capacity. The results of the Francis enquiry, in
2013, reporting on the failures at Mid Staffordshire
Hospital, concluded that there needed to be a system
that dealt with acts and omissions from care workers
that result in ill treatment and neglect. This was corrected by statute in 2015 by the Criminal Justice and
Courts Act 2015 which in section 21(1) stipulated that
“A care provider commits and offence if the care providers activities are managed or organised in a way which amounts to
a gross breach of relevant duty of care owed by the care
provider to the individual who is ill-treated or neglected”. 63
Scotland has the offence culpable homicide, which is either voluntary or involuntary. Culpability is central to
the test in Scotland with a mens rea being required.
Whilst there is no test of GNM in Scotland, GNM is
akin to culpable involuntary manslaughter. The defendant’s state of mind is essential, meaning that there,
as Robson eludes, some contemporaneous awareness.
In order to prove a charge of culpable homicide, unlike the offence of GNM in England, the prosecution
would have to establish the accused committed an unlawful act. It would have to show that the act was intentional, reckless, or grossly careless and death was a
direct result. It also ensures the prosecution of a doctor for culpable homicide must serve the public interest. This inevitably supports a patient safety culture.
Contrast this to the furore caused by the challenge
from the GMC against the MPTS decision against Dr
Bawa-Garba.67 Thus in Scotland the test facing doctors results from a high bar set against prosecution.
The standard set in New Zealand, that is the liability
for manslaughter by failure to perform a legal duty,
requires proof of a “major departure” from the standard of care expected of a reasonable person. The
“major departure” test has been described as a “good
formulation and avoids any difficulties which might be
thought to apply to the term “gross negligence”.68 Before the
introduction of the Crimes Act 1961, the law pertaining to negligent manslaughter was laid out in the
Crimes Act 1908. Section 171 of that Act provided for
a legal duty to take reasonable care, which determined
that the standard to be applied was that of civil or
causative negligence. The new Crimes Act was introduced in 1961 with the offence of manslaughter laid
out in section 160.69 The Crimes Act affirmed the earlier law by maintaining the ordinary civil negligence
standard for manslaughter, a simple departure from
the relevant duty of care. This change came about
from the seemingly honest mistake by an anaesthetist,
Dr Yogasakran that resulted in a patient’s death.70 The
ensuing conviction caused considerable disquiet
amongst the medical profession. Significant change
was made to the law in 1997 with the introduction of
In deliberate egregious acts, such as seen with the
Breast Surgeon Ian Paterson, section 18 (wounding
with intent), and section 20 (unlawful wounding) of
the Offences against the Person Act 1861 may apply. 64
Another advantage of the Criminal and Justice Courts
Act 2015 is that employers of those guilty of willful neglect and ill treatment are also culpable.65 Prior to
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