EWJ June 2024 web - Journal - Page 46
Gross Negligence Manslaughter
and the Medical Profession
Is the Test Fit for Purpose?
Is a New Approach Needed?
Rakesh Bhardwaj
MBChB MD FRCS FRCS(Ed) FRCS(Gen Surg) LLM
Consultant Surgeon
Article two of three
not in the least because there is persisting legal
disagreement in this regard. Lord LJ statement: “the
question for the jury is not whether the defendant’s negligence
was gross, and whether, additionally it was a crime, but
whether his behaviour was grossly negligent and consequently
criminal”5 was considered by Ashworth as a “distinction
without a difference”.
Post Adomako concerns
The test set out in Adomako established a framework
for GNM.1 Whilst recklessness was abandoned, the
test was not without its problems and concerns arose.
This generated debate as to whether the test of GNM
was comprehensive enough to deal with the nuances
of law and relevant to modern medical application. In
this article we explore whether the Adomako test is an
effective and relevant test. We look at case law that has
modified the test into its current format. We then revisit old concepts that have been cast aside such as the
mens rea and culpability. We then explore the need for
reform and allude to academic concerns around the
test.
Recent cases have caused renewed interest in the
offence of GNM. David Sellu, a consultant Colorectal
Surgeon, was convicted of GNM on the basis of failing
to act quickly enough in a patient who had perforated
his bowel following an orthopaedic operation.7 Despite having had a Hartmann’s procedure performed
by Mr Sellu the patient died. Sellu appealed his conviction whilst serving his sentence on the grounds that
the judge in the original trial did not instruct the jury
correctly. The conviction was quashed in part because
the jury received little direction and had been left to
trawl through the evidence without understanding
what weight needed to be applied to each of the information provided. But for this critical failure of the
judge to instruct the jury correctly it could be argued
that the conviction of David Sellu may have still stood.
Circularity
A major criticism of the test is circularity, this was
acknowledged by Lord Mackay in Adomako as he
provided the common law definition of gross negligence.2 The extent of criminal culpability is left to the
jury to decide, based level of grossness of the negligent act. Juries often ask: “How negligent must the defendant have been so as to be criminal?”. A response that
illustrates circularity is as follows: “So negligent as to deserve a conviction for manslaughter”. Here the law is insufficiently clear, in both its certainty and fairness. This
was countered by Lord Chief Justice Judge who, in
Misra and Srivastava, stated that there was no uncertainty in the law, that the law is clear; the only uncertainty is in the decision making process for those who
are interpreting the law.3 The reason for this difficulty
surely has to be that the test is inherently vague, being
too broad and uncertain. Arguably the uncertainty
that exists is the process of decision making in those that interpret the law. The formulation does not provide
guidance given juries to help determine if conduct has
been grossly negligent and criminal. This leads to a
danger as it is easy for an expert witness to stray outside their remit and set the benchmarks for what they
believe to be negligent in that case and in doing so dangerously usurp the role of the jury. Robson alluded to
the function of a jury; to deliberate questions of fact
not law.4 It is for the judge to direct the jury on a point
of law. The issue of circularity has not been resolved,
EXPERT WITNESS JOURNAL
In some circumstances the criminality based upon
grossness stands, not all doctors are exculpated, even
if there are mitigating circumstances. The most wideranging case of recent times is that of Dr Bawa-Garba.8
She was a trainee pediatrician who was convicted of
GNM in November 2015 over the death of a child.
An appeal was refused with Sir Brian Leveson
opining:
“… the judge had correctly directed the jury that the prosecution had to show what a defendant did or did not do was “truly
exceptionally bad”.9
There were wider implications of this case that are
outside the scope of this dissertation, but she eventually returned to work as a medical practitioner.
Dealing with Epithets
Another recurring theme is the language used to
describe the act of grossness, creating what Quick
termed the “definitional difficulty”.10 The terms “excep44
JUNE 2024