Abstract
In seeking to provide a solution to the issues raised by medical manslaughter, Wheeler and Wheeler have recently proposed reform by way of a reconceptualised offence based on a breach of a fiduciary duty amounting to a betrayal of trust. This article provides an examination of gross negligence manslaughter, before undertaking a review of the proposals advocated by the authors. Applying the proposed offence to more contemporary cases than initially examined by Wheeler and Wheeler, namely, Misra and Srivastava, Kovvali, Rudling, Rose and Sellu, it is argued that despite the initial appeal of a betrayal of trust test, the proposals advocated by the authors do little to remedy the flaws within the current law.
Highlights
In recent years, the appropriate legal response to death caused as a result of gross medical negligence has generated considerable academic debate.1 While it remains uncontroversial to assert that1
Physicians ought to be subject to the criminal law, a solution which properly reflects the blameworthiness of the errant clinician, yet does not afford medical professionals unwarranted protection, remains elusive
A novel solution may exist in the form of a reconceptualised offence based on a breach of a fiduciary duty amounting to a betrayal of trust as recently proposed by Wheeler and Wheeler
Summary
The appropriate legal response to death caused as a result of gross medical negligence has generated considerable academic debate. While it remains uncontroversial to assert that. The offence encompasses an especially wide class of defendants,122 with the result that when the manslaughter label is applied in cases of death caused by clinical gross negligence, it is questionable as to what the term truly implies about the conduct and culpability of the accused.123. Death may be a matter beyond the control of an agent, and to only impose punishment on the actor who causes death is to attach weight to matters of ‘moral luck’, which is contrary to ‘Kantian traditions of fairness’.129 Such concerns are hardly unique to gross negligence manslaughter,130 within the sphere of medicine, the mere fact that a patient has died cannot be regarded as increasing the moral culpability of any clinician.131. Having analysed the deficiencies inherent in the gross negligence manslaughter offence, the focus will move to consideration of the proposed alternative, betrayal of trust, as advanced by Wheeler and Wheeler
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