oct ewj 24 online - Flipbook - Page 77
careful that juries are not easily swayed to a return to
such epithets that could easily influence outcome.
have argued to keep the current test. The Law
Commission needs to revisit this subject in light of recent high profile cases. We may have to contend for
the moment with stuttering through current common
law and rely on the Appeal Courts for the moment to
evolve the test further.
A proposal for change – modifying but not
abandoning the current test
Lay jurors understand the words negligence and
recklessness and may have difficulty with more complex
legal concepts, even if they are only asked to deliberate on fact not law. Their beliefs and social constructs
will affect their decisions. Should we abandon the current test on GNM completely or replace it entirely? I
would favour a conciliatory approach and modify
what we have. Abandoning the current test completely
would seem a retrograde step as so much has evolved
already. A test based upon recklessness alone would
not be comprehensive enough.
Final thoughts
This series of articles critically analysed the current law
on GNM, explored how we have arrived at this test,
evaluate its deficiencies, examined alternatives and
suggested reform. The current test though flawed
would be advanced with the modifications suggested
above.
• Reintroduction of a mens rea as a critical element
A surgeon cannot refuse to operate because the
operative procedure carries some risk. Being risk
averse may paradoxically do more harm than good.
Ellis, a schoolteacher, was convicted of the death of a
pupil who drowned in a mountain stream on a school
trip. He could have avoided the risk by simply not permitting the excursion.87 Doctors are often placed in
situations that they cannot avoid providing care; they
cannot completely avoid the risk.
• Widen the offence to include not fatal (serious
harm), this seeks to criminalise poor professional
performance
If a test is not robust enough and does not have the
confidence of the medical and judicial profession then
the flaws have devastating consequences.
I would therefore propose the following changes:
• A modification of the current test, not a complete
departure from it
• Inclusion of an assessment of determining culpability
• Explore and take reference to the context of the
crime
(I would like to acknowledge both Dr Robson and Dr
Swift from the Academic Department of Law,
Northumbria University in their guidance with these
articles. This work was submitted to Northumbria
University as part of a thesis submitted for the award
of LLM)
The epithet of “Gross Negligence” could be rephrased as
“negligent as to cause serious harm or death” or simply we
could adopt the Major Departure Test principles. Addressing criminality, criticised as being circular, could
be safely left to the jury, but they need specific guidance to address culpability. Without including a
method to assess culpability the test lacks power and
invites further criticism. The current test has abandoned the mental state of the doctor at the time of the
breach, which I believe to be a mistake. I would favour
a modification where culpability, by reintroducing the
mens rea, is addressed. It is essential to make an attempt
to know what the doctor was thinking at the time of
the breach. The paradox is that a test based on negligence does not require the mental state to be considered, this is notionally a failure.
References
1. Ferner RE and McDowell SE. Doctors charged with
Manslaughter in the Course of Medical Practice, 1795-2005:
A Literature Review (2006) 99 J R Soc Med 309,314
2. The Law Commission (LAW COM No 237). Legislating
the Criminal Code. Involuntary Manslaughter. 1996
3. The Law Commission (LAW COM No 237). Legislating
the Criminal Code. Involuntary Manslaughter. 1996. Section 3.2
4. The Law Commission (LAW COM No 237). Legislating
the Criminal Code. Involuntary Manslaughter. 1996. Section 3.3
If we accept that a mens rea has no part in negligent
criminality it is the action itself (or omission) and the
outcome that is relevant, and if we wish to subscribe to
this view then a sliding scale of culpability seems a
sensible approach.
5. The Law Commission (LAW COM No 237). Legislating
the Criminal Code. Involuntary Manslaughter. 1996. Section 3.4
The dilemma seen with Honey Rose could be solved
by criminalising poor professional practice and abandoning context as a defence. If a doctor fails in their
basic professional duty there are circumstances where
this failure should be held to be criminal.
7.The Law Commission. Consultation paper No 177. A New
Homocide Act for England and Wales. 2005
6. The Law Commission (LAW COM No 237). Legislating
the Criminal Code. Involuntary Manslaughter. 1996. Section 3.16
8. The Law Commission. Consultation paper No 177. A
New Homocide Act for England and Wales. 2005. Section
5.40
9. The Law Commission. Consultation paper No 177. A
New Homocide Act for England and Wales. 2005. Section
5.41
I would also seek to widen the offence. It seem
illogical that only death as an outcome is criminalised.
We should also punish serious harm if the harm arose
from a criminal medical action or omission.
10. Quick O, ‘Medical manslaughter: the Rise and Replacement of a Contested Crime” in Erin and Ost (eds) The
Criminal justice System and Health Care (OUP, Oxford
2007) 47
The wide range of academic alternative to the current
test reflects the complex nature of this subject. None
EXPERT WITNESS JOURNAL
11. R v Bateman (1925) 19 Cr App R 8
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