oct ewj 24 online - Flipbook - Page 76
or criminality. Judicial direction has been varied.
Other failures that have caused concern relate to how
to address the blameworthiness of the defendant;
should a mens rea be returned to the test? Also, how
should we address culpability? There is some disquiet
on how restrictive the test is, as culpable acts that do
not result in death escape criminal censure. Is there
then a need to widen the offence? The original formulation has been subject to considerable challenge,
which has resulted in sometimes an unsatisfactory and
confusing outcome. Difficulties have arisen, as there is
no agreed consensus as to what solution is effective to
encompass all the deficiencies highlighted thus far.
The determination of whether an act is criminal has to
be based upon culpability. The greater the culpability
the more likely the negligence is worthy of criminal
censure. The issue of culpability is not inescapable; juries need specific guidance on this. The “wicked mind”
is not devoid of a consideration of the mens rea. In
this manner the test cannot be without it. Abandoning the mens rea was a mistake. Outcome based convictions in the absence of determining the state of
mind of the defendant are not suited to healthcare violations. The cognitive intent at the time of the breach
is crucial to addressing culpability. The Scottish formulation to consider culpability is common to many
proposed revisions. How culpability is included differs. Having proposals set from the sentencing guidelines has allowed a measure of graduations to be
incorporated to determine guilt. The Scottish formulation also places any prosecution to be in the public
interest. This would most likely foster an open culture
and lead to more honest reporting of medical errors.
Exploring proposals for change
Whilst one solution would not work for all circumstances it would seem attractive having explored alternatives to see how the test could evolve. Any
solution proposed should be robust enough to address
the deficiencies above.
Whilst Crosby’s return to an objective capacity-based
test of recklessness seems outmoded as Caldwell recklessness was overturned, she grounds her proposals on
a morally substantive approach to determining culpability by asking why the inadvertent defendant did not
foresee a risk.84 If a reason is proffered then an advance on the moral blameworthiness can be made by
applying philosophical principles. Exculpation will this
depend on why the duty was breached, not simply that it
has been breached. Linking theories of culpability and
inadvertent conduct is proffered to be the solution. In
this manner the most important are: choice theory (a
defendant should not be punished unless he has both
the capacity and fair opportunity to abide by the law),
character theory (criminal culpability is based on the
subjective character traits of the individual - only
“bad” people should be punished) and Gardner’s role
theory (responsibility lies only when we are fulfilling a
role). These theories seem to almost want to exculpate
the defendant from the outset.
The Adomako formulation fails at it last hurdles; circularity being the most troublesome. Brazier and Alghrani’s proposals together with Robson’s sliding scale
proposal seem very attractive alternatives as they looks
at progression of negligence whose assessment is more
rigid, and is based upon logic, reasonableness and culpability. Wednesbury unreasonableness is a novel way of
introducing irrationality of thought into medical decision-making, but we have to cautious. The first limb
of Wednesbury unreasonableness focuses on whether the
body has taking into account of the right issues. Does
this mean that we must consider institutional and contextual liability? It is not made clear. With these proposals the defendant is led down a “path of
negligence” from which exculpation would be increasingly difficult. Having graduated stages to a common law test, with each component needing to be
fulfilled, is attractive and leaves little room for error as
long as the successive components are achieved. But
we have to be sure that each of the components are
robust and not open to misinterpretation. Inevitably
the Appellate Courts may challenge the Robson proposal (if they were implemented) as we have seen in
the Adomako formulation.
A similar return to replacing the current test with a
test based upon the subjectivist fault threshold, as proposed by Lodge, seems attractive.85 However we must
be cautious in returning to a subjective reckless test as
there was a clear departure made in the Adomako formulation; it was deemed too restrictive. Practical difficulties still exist with any subjective test – for example
there would be difficulty in determining whether a defendant has the necessary conscious awareness of risk.
There is a tendency to prosecute only those who have
displayed some conscious awareness of the risks associated with their conduct. Also as highlighted before
objectivism creeps in to any subjective formulation.
The major departure test (based upon the New
Zealand judicial system) would set the required standard and would help address what constitutes a failure
of care, however far removed from the norm that may
be. It also avoids the need for epithets such as “grossness” to be used. It is important that the role of expert
witnesses is observed closely as jury usurpation could
influence the outcome of a trial.
EXPERT WITNESS JOURNAL
The French judicial system punishes errors and not
just those that result in death, but only egregious errors that do not result in death should warrant criminal punishment. Errors, sadly, are a part of a
functioning, pressured health system. We cannot inadvertently permit the criminalisation of simple negligent errors. Kazarian, Griffiths and Brazier have
indicated that some prosecutors indicate it is “wrong”
to ‘pillory’ doctors because of the dangerous nature of
the job- they will inherent be exposed to a risk-laden
environment.86 Samanta’s description of test, “ death
by gross professional negligence”, does not include a
widened offence. Also their contextual concern may
be too forward as institutional liability is still poorly
evolved, the “totality of the circumstances of the breach” not
being widely adopted. Wheeler’s “Betrayal of Trust”
seeks truth on a visceral level, medical care is a matter
of trust and patients are vulnerable. We have to be
74
O C TO B E R 2 0 2 4
