oct ewj 24 online - Flipbook - Page 74
the Crimes Amendment Act 1997 (No 88). This
amendment brought in section 150A(2) of the Crimes
Act, and thus the standard of a “major departure”, to
be applied to section 160 when negligence is alleged.
R v Hamer determined that the Major Departure Test
was objective, with what constituted a major departure being determined by reference to what a reasonable person in those circumstances would have done.71
There are seemingly several advantages to this formulation. This erstwhile raising of the bar for medical
manslaughter would improve accident reporting, as
it would remove the fear of prosecution for minor
medical mistakes. The second advantage was that it
brought legislation in New Zealand in line with the
standards of negligence set out in overseas jurisdictions such as the United Kingdom and Australia.
the Seymour objective recklessness approach to
manslaughter and reinstate gross negligence as the
appropriate fault term in all case of involuntary
manslaughter.73 Despite this Crosby advocates a
broader, capacity-based approach to recklessness, taking into consideration the defendant’s cognitive capacity and knowledge at the time of the actus reus,
including why the defendant failed to see the risk or
continued despite appreciation of it. Culpability could
be achieved by asking why the inadvertent defendant
did not foresee the risk. One can then advance to investigate the moral blameworthiness of the defendant.
The test would be widened to propose formulation
that extends inadvertent liability to foresight of causing serious injury, not just death. Applied to a defendant failing to act it is proposed the following Model
Direction could apply:
“…….a person will be deemed reckless for failing to act if he
has a legal duty to act and is, or should be, aware of a serious
and obvious risk to the victim’s welfare and yet fails to act to
prevent or ameliorate harm. This is where:
Alternative solutions - Further academic
perspectives
If the current formulation is to be reconsidered there
are several options available. Either we abandon the
fault term of gross negligence and return to either an
objective or subjective test. Alternatively we can address the moral culpability of the defendant and relate the relevance of context to the crime. We can also
link unreasonableness to culpability. Finally we can
see how a failure of the duty and the trust held between the doctor and patient can be held to be criminal. Each of these has been proposed and merit
analysis, though no proposals simply to modify the
current test have been advocated.
1. he fails to act when there is an obvious and serious risk of
death or serious harm to another when he is under a legal
duty to act [towards that other person], and
2. he either has not given any thought to the possibility of there
being any such risk or he has recognised that there was some
risk involved and has ignored it or tried to eliminate it in a
wholly incompetent manner; and
3. if satisfied that an obvious and serious risk in such circumstances has not been considered or is dealt with in a wholly
inappropriate manner by the defendant, the jury are entitled
to infer that he has the state of mind required to constitute the
offence and will probably do so; but regard must be given to
any explanation he gives which may displace the inference.”
Crosby advocated a complete change of direction by
abolishing the fault term GNM and replacing it with
reckless manslaughter utilizing an objective capacity
based test, similar to the Caldwell/ Lawrence direction,
or more specifically Lord Diplock’s Model Direction.72
She proposed the inclusion of a hybrid theory of culpability. In advancing this proposal the aim was to distinguish between those who are morally blameworthy
and deserving of punishment and those who would
be exculpated. In other words it would target conscious departures from good practice as opposed to
medical mishaps that have unfortunate consequences.
Crosby alluded to the fact that the Court of Appeal
took a wrong direction in Adomako, citing four reasons
why the Court of Appeal favoured GNM over recklessness. First it was felt that the term “reckless” from
the formulation would be not nuanced enough for juries, having left it as a “wide definition”. Second, the
Caldwell/Lawrence direction on recklessness specifically
referred to circumstances where the defendant had
acted to create the risk. Applied this literally this would
not apply to many cases of involuntary manslaughter,
in Adomako’s case he failed to act to prevent harm when
he was placed under a legal duty to act. Thirdly, the
exact wording of the Model Direction was that the
“obvious risk” would be obvious to the “ordinary prudent individual”. In many cases where a breach of
duty occurs an expert is involved and in such circumstances an ordinary prudent person may not appreciate the risk. Lastly, GNM was favoured because
Adomako had foreseen the risk and tried to eliminate
it in an incompetent manner. The House of Lords
agreed with the Court of Appeal’s decision to reject
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Controversially applying this Model direction to
Adomako, as Crosby does, one could advance why he
did not deserve criminal punishment (although this
view is not held widely by most). Once he realised his
patient was in trouble he showed appropriate concern
and positively acted to try and correct the situation.
He failed, as he was simply not competent enough as
an anaesthetist. By contrast Honey Rose would face
criminal sanction under Crosby’s proposals: as it
would be demonstrated she had a wanton disregard
for the victim. She failed to examine the patient’s eye,
failed to examine the image of the back of the eye,
failed to call the patient back for a full examination
and falsified records to cover up her wrong doing. Applying this direction to Bawa-Garba it would be to support a finding that her failure to diagnose septic shock
was not the result of a lack of regard for the welfare of
her patient. Applying this modified Model direction
Dr Bawa-Garba would satisfy (1) and (2) but not (3)
and would not be criminally responsible.
Lodge seeks to redress the offence by suggesting that
the offence of manslaughter should only capture those
who have passed the subjectivist threshold for liability.75 This would include those who chose to interfere,
or risk interfering with the legally protected interests
of others. Punishment would be predicated on conscious choice to undertake risk, causing harm to oth72
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