EWJ June 2024 web - Journal - Page 50
There seems to be little thought in the Adomako test
to addressing culpability. It is entirely dependent on
the jury, and without guidance addressing culpability
is particularly challenging for most jurors. Modern
theories of culpability are based upon Kantian theory:
that people should not be punished if they could not
have avoided doing a criminal act; and Humean or
Aristotelian theory, based upon character traits of the
individual. Both choice and character theorists struggle with identifying liability for negligence. Specifically
controversy surrounds gross negligence manslaughter: If a person is not aware that their actions are liable
to cause harm to another it may not be appropriate to
hold them criminally responsible.
In the Hamilton review, describing discussions held
with senior members of the legal community, it was
noted, “the law, if properly applied did not require change.”
It was a matter of it not being consistently applied in
the early stages of an investigation.39 To quote one
doctor:
“I fear making an error every day. I spend much of my time
second-guessing and worrying about my clinical decisions. I
have nightmares about inadvertently causing patients harm.
Often there are too many patients for one person to deal with
and things get missed.”
Rather unflatteringly the offence has been criticised
by academics as “something as a dog’s breakfast”41 and an
exhibition of the “common law at its worst”.42 There is
still the unresolved issue of how far below a standard
an accused has to fall for their actions to be considered
criminal. This inevitably leads to uncertainty for the
jury; often the defendant’s fate rests on the use of epitaphs. Some feel that having a test that relies so much
on the discretion of the jury leaves them “incapable of
any objective and fair measurement.”43 We have already
noted that Quick suggested that the test for GNM is
“too broad and uncertain”.44 This breath of the offence
caused significant concern to Lodge who felt that gross
negligence was “too nebulous a notion”, i.e. too broad in
its application and as such it was not a reliable defensible standard of criminal culpability.45 She called for
readdressing the boundaries of the offence so that
only those whose conduct was deserving of state censure were punished. The offence of “involuntary
manslaughter”, being as broad as it is, has at one end
of its scale those that commit unlawful acts that result
in unintended death. At the other end, at its lower
boundary, sits GNM, which marks the border between
manslaughter and accidental death. It is this lower
boundary that needs clarity. All too often it is left to juries to determine the parameters of the offence: “it is
a crime if the jury think it ought to be a crime”.46 This
is often based not by reference to a measure of seriousness, but often on the social or moral perceptions
of the members of the jury.
The need for reform: Academic concerns
The test of GNM can thus be summarised, as having
five elements that the prosecution must prove:
There is a duty of care
1. There is a negligent breach of that duty of care
3. There is reasonable foreseeability that the breach
gave rise to a serious and obvious risk of death
4. That cause of death was caused by or significantly
contributed to by that breach
5. The conduct of the defendant was so bad in all the
circumstances as to go beyond the requirement of
compensation but to amount to a criminal act or
omission
The test for GNM still sat awkwardly. Walmsley succinctly inferred that “GNM lacks definitional power and
leaves defendants and prosecutors bereft of points of reference
to assess conduct”.34 There has been some debate
whether criminal law should be involved at all in dealing with medical errors, and also whether the test
should be expanded to incorporate negligent acts that
do not result in death and should also invite criminal
censure. Some actions that do not result in death also
may warrant a criminal response but one must find
a fair framework for culpability. Herein lies the
dilemma. The test for GNM must be robust enough to
cover all errors that result in death and differentiate
the blatantly reckless from the momentary slip. Oliver
Quick alluded to the “Brutal Brush of Gross Negligence”
encompassing all deaths encapsulating errors.36 However the test must also clearly distinguish the morality
of the act. Distinguishing between a clear violation and
a momentary slip is significant as they are conceptually
distinct and morally different. There is a vast difference between the actions of Dr Gray, who in 1952 inhaled anaesthetic gases prior to caring for a patient
that subsequently died.36 This is morally distinct from
Dr Falconer, who in 2006, incorrectly injected oxygen
to the tube of a baby by mistake that also died. He was
acquitted. The outcome was the same for each patient
but the moral blameworthiness and culpability of the
defendants were widely different. In other words the
ill-defined threshold for gross negligence fails adequately to distinguish between flagrant negligence and
fleeting error. Some would argue that “Gross Negligence” is too broad, too vague and potentially unfair.
Drs Sullman and Prentice provided a good example
of good doctors ensnared by the law of GNM.38
EXPERT WITNESS JOURNAL
Quick’s comments echo those of others, largely
criticising the formulation outlined in Bateman and affirmed in Adomako. He contended that the offence of
GNM was vague, with the lack of prosecutorial guidance causing confusion in its application. He argued
that the test of GNM was unclear, unprincipled, often
unfair and worthy of abolition. Quick also alluded to
the character of the defendant, arguing some merit to
Tadros’s character based theory of criminal responsibility.47 He also argued for increased regulation of experts and advocated for the reform of rules governing
the admissibility of expert evidence. Whilst gross negligence is a matter for the jury, their decisions may be
influenced their perception and interpretation of experts and their evidence. Ward too expressed concern
about jury usurpation by experts.48
Crosby commented that the common law has
difficulty in determining boundaries between culpability.49 She argued that recklessness and negligence
are context and reason dependant and ignore the significance of a behavioural component to the offence.
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JUNE 2024