EWJ June 2024 web - Journal - Page 51
It is contended that a lack of flexibility for the current
test of GNM creates a “one size fits all approach” and fails
to differentiate between different medical mistakes.
Extending some of these concerns to their natural
conclusion, it is plausible (though not widely accepted)
that Adomako may not have been convicted of GNM
as he had made some manoeuvres on noting a reduction of blood pressure in the patient whose endotracheal tube had disconnected.50 Based upon what
he knew at the time of the breach he acted to rectify
the clinical deterioration of the patent, demonstrating
concern not indifference. One could argue (though
most of his anaesthetic colleagues would disagree as
the disconnection of the endotracheal tube should
have been noted in a matter of seconds) that he simply was an anaesthetist lacking the skill to correct the
clinical error. That he was “feckless”. The fact that in
this case his actions resulted in death led to a criminal
conviction. Contrast this to Misra and Srivastava who
disregarded the concerns of their patient and could
be held to be morally culpable.51 Therefore the current test overlooks those that do not disregard the victim’s welfare and one could argue for the
implementation of a capacity and culpability based approach to manslaughter, thus enabling a differentiation from those that are morally blameworthy from
those that should be exculpated.
References
1. R v Adomako [1994] 3 WLR 288
2. R v Prentice, Sullman, Adomako, Holloway. (1993)
157J.P. 1185; [1993] 3 W.L.R. 927
3. R v Misra and Srivastava [2005] 1 Cr App R 328
4. Robson M, Maskill J, Brookbanks W. Doctors are Aggrieved- Should They Be? Gross Negligence Manslaughter
and the Culpable Doctor. The Journal of Criminal Law
(2020). Vol 84(4), 312-340.
5. R v Misra and Srivastava [2005] 1 Cr App R 328
6. A Ashworth and J Horder. Principles of Criminal Law (7th
ed OUP, Oxford 2013), 293
7. R v Sellu [2016] EWCA Crim 1716
8. R v Bawa Garba [ 2016] EWCA Crim 1841
9. R v Bawa Garba [2016] EWCA Crim 1841
10. Quick O. Medicine, Mistakes and Manslaughter. Cambridge Law Journal 69(1), 2010, pp186-203
11. R v Sellu [2016] EWCA Crim 1716
12. R v Bawa Garba [2016] EWCA Crim 1841
13. R v Rudling [2016] EWCA Crim 741
14. R v Rose (Honey Maria) [2017] EWCA Crim 1168
15. R v Winterton [2018] EWCA Crim 2435
16. R v Rose (Honey Maria) [2017] EWCA Crim 1168
17. Laird K. “The evolution of gross negligence manslaughter” [2018]. Arch Rev 6
Robson further explored the uncertainty of the
offence of GNM.52 She alluded to the concerns faced
by many doctors, which rested in two parts. Firstly, the
offence of GNM only identified negligent doctors
whose patients died; it failed to identify bad or poorly
underperforming doctors. This was a reasoned cause,
she argued, to expand the offence. Secondly the issue
of culpability is not clear within the offence, a mens
rea is absent, potentially leading to the prosecution of
good doctors who make a bad choice in an often-pressured clinical circumstances. Robson alluded to the
unfairness of the legal system. It became evident that
those doctors that were negligent and perform badly
are only censured by their regulatory body and the
civil courts. Yet criminal actions that result in serious
harm and death were a matter of the criminal courts.
The boundaries were blurred which has led to doctors inevitably being concerned. Without demonstrable culpability the use of negligence alone to criminally
convict a doctor seemed unfair.
18. Stark F. The Reasonableness in Recklessness. Criminal
Law and Philosophy. (2020), 14, 9-29
19. R v Rose (Honey Maria) [2017] EWCA Crim 1168
20. R v Rudling [2016] EWCA Crim 741
21. R v Winterton [2018] EWCA Crim 2435
22. K Laird, ‘Gross Negligence Manslaughter: R. v Winterton (Andrew)’ (2019) 4 Crim LR 336–39
23. R v Kuddus [2019] EWCA Crim 837
24. A-G ref no 2 of 1999 [2000] 2 Cr App R 207
25. Rowley v DPP [2003} EWHC 693 Divisional Court of
the Queen’s Bench Division
26. R v Bateman (1925) 19 Cr App R 8
27. A-G ref no 2 of 1999 [2000] 2 Cr App R 207
28. Choice theory centres on an argument that people are
responsible for the things that they do. People are guilty of
a crime only if they chose effectively to do the actus reus.
Capacity theory is similar to choice theory in that it accepts
the argument that people are responsible for what they
chose to do. But it also accepts that it is proper to punish
those who could have effectively chosen to act lawfully, but
did not.
Character theory focuses on the argument that the defendant is responsible for their character. If their criminal actions reveal character traits that are opposed by the criminal
law they should be punished.
From Herring J. Criminal Law, 10th edition. Oxford University Press. p 167.
This article has addressed some of the flaws that have
arisen. It had re-explored problems that have resurfaced and outlined academic causes for concern. In
the next article, we examine forgotten and alternative
concepts and explore different proposals to address
some of the deficiencies that the current test has.
(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)
29. R v Misra and Srivastava [2005] 1 Cr App R 328
30. European Court of Human Rights, ECHR. Article 6 of
the Convention - Right to a fair trial
31. European Court of Human Rights, ECHR. Article 7 of
the Convention - No punishment without law
32. R v Rudling [2016] EWCA Crim 741
33. R v Prentice, Sullman, Adomako, Holloway. (1993)
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