oct ewj 24 online - Flipbook - Page 75
ers. We seek to ascribe blame to an individual in such
cases. This basis of moral blameworthiness being based
upon two general theories: ‘character theory’ (a
blameworthy state of mind is required for the imposition of criminal liability) and ‘choice theory’ (blame is
only justified if the agent could have chosen otherwise
than he did). Lodge contends that there is evidence
that subjective fault provides a more consistent and
principled basis for determining liability in gross
negligence cases.
professional practice so as to engage liability in tort?
2. Did the doctor show indifference to an obvious risk of
serious injury to his patient?
3. Was the doctor aware of such a risk and nonetheless exposed the patient to that risk for no accepted medical benefit?
4. Should the doctor have been aware of such a risk and he
was not, did his practice fall significantly below the standard
required by the responsible professional opinion?
5. In relation to questions 3 and 4, it is argued that
circumstances, lack of capacity or inexperience are mitigating
factors, the relevant negligence nonetheless may be found to be
gross if there is evidence that the doctor should have been
aware…. and for no good reason went ahead with treatment
resulting in serious injury or harm.
Samanta and Samanta revised formulation is based
upon fair attribution of blame and transparency.76
Their principal objection to GNM is that the offence
focused too narrowly on the defendant as an individual. They contended that insufficient consideration
was given to contextual factors such as the challenges
and pressures caused by inadequate systems and processes. Their arguments are as previously highlighted
in this thesis: first, there is a dependency between context and decision-making. Second, they argued that
there might be a place for institutional liability. Thirdly
they preferred a degree of transparency so that there
can be learning from mistakes. This was very much
the model adopted in New Zealand and it is interesting to speculate whether Bawa-Garba would be convicted if the above were the basis for conviction. They
supported the view of the Law Commission (237) that
criminal law should be properly concerned with questions of moral culpability. They argued that the threshold to determine criminality should not be left to the
jury but should rest properly with the law. They proposed a new offence: Death by Grave Professional Negligence (GPN). There would be two components to this
test:
1.“Negligence needs to be established within a duty of care,
breach having caused the death of the patient, together with
foreseeability requiring proof of serious and obvious risk of
death at the time of the breach.
What of Wheeler and Wheelers’ Betrayal of Trust concept?80 They contended that a doctor would be criminally responsible if:
1. the defendant owed a fiduciary duty to the victim
2. the defendant breached that duty in a way that amounted
to a betrayal of trust
3. it was reasonably foreseeable that the breach of that duty
gave rise to a serious and obvious risk of death
4. the breach of that duty caused the death of the victim
Offering a simplistic view, Wheeler and Wheeler
believed that ‘betrayal’ and ‘trust are ‘plain everyday
English words’ commonly understood. Lilleker contends that conduct amounting to a betrayal of trust results in a ‘gut feeling’ that the defendant warrants
punishment, so the test proposed does not require any
detailed legal explanation.81 Offering this visceral test
would harmonise standards across both prosecutors
and juries, and at the same time reducing the role of
expert witnesses. Applying this test to Misra and Srivastava it would seem they failed to consider the welfare of their patient, and ultimately betrayed their
patients trust.81 This test when applied to Dr Kovvali,
a doctor who failed to address the classical signs of diabetic ketoacidosis in his patient, was clearly negligent
and his behaviour amounted to a breach of his fiduciary duty. It is argued that the term fiduciary duty
may not be a practical solution in everyday and
remains of academic interest.
2. The culpability element of GPN required (for the criminal
offence) should be defined as a substantial failure by the defendant to take reasonable care in the totality of circumstances
of the breach.”
This revised formulation would have two advantages:
first, it would set the fault level by legislation and secondly it gives weight to the wider circumstances and
context of the case. The disadvantages I see is that it
would usurp the role of the jury, sets narrow limits in
terms of the width of the offence, and negates any discussion regarding recklessness. Samanta and Samanta
are not alone in proposing the wider circumstances
should be addressed. Griffiths and Sanders too advocated a “context-specific negligence based offence for healthcare”.77
In this chapter we have examined alternative proposals to the current test. We have explored how the law
commission has changed their opinion. We have revisited concepts that have been cast aside through the
Court of Appeal. We have identified a diversity of academic opinion, which would indicate that finding an
ideal test is not easy. In the next section we provide
concluding thoughts.
The Brazier and Alghrani framework alluded to by
Robson is a neat proposal linking negligence, illogicality, unreasonableness and culpability.78 Following
Ashworth’s argument about negligence-based liability
for serious harm their proposal for a more substantial
test may be expanded.79 Their framework is outlined
in five stages:
Conclusion
This thesis has forwarded the notion that the current
common law test for GNM is not fit for purpose. The
test is not nuanced enough in its present format to differentiate those acts of blameworthy conduct from innocent fleeting errors. We have examined where the
test is flawed. The issue of circularity is omnipresent as
a criticism. It is still not clear what constitutes grossness
1. Did the alleged negligence fall short of responsible
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