Abstract
Doctors like everybody else do make the occasional error. Sometimes these mistakes have disastrous consequences and somebody might even die. But when is an unintentional error so serious that a criminal offence has been committed? Gross negligence is currently the legal threshold for medical manslaughter in English criminal law. Interpretation of ‘gross negligence’ is contentious and this does give rise to some uneasiness within the medical profession. However, it is not only the definition of ‘gross negligence’ which is problematic, the underlying intuitions about moral luck and personal control are controversial as well. Judges and juries often face a difficult, if not impossible, task in medical manslaughter cases when deciding whether a criminal offence has been committed. One way to solve these problems would be to use a clearly-defined objective norm for personal failure as threshold, but this will imply a higher threshold for criminal prosecution.
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