Gross Negligence Manslaughter: Is Prosecution of Doctors Always in the Public Interest and Is Specific Prosecutorial Guidance Needed?

Abstract

There have been recent criticisms of the prosecution of doctors for gross negligence manslaughter (GNM) and the Crown Prosecution Service (CPS) has been under the spotlight. The CPS must make decisions to prosecute based on the evidential test and public interest test. There has been much attention on the evidential stage with a focus on how the CPS approach the threshold of GNM and the use of experts in this regard. The public interest stage by comparison has been subject to little scrutiny and it is time to redress that balance. It is not inevitable that the public interest test will be met in all GNM cases; the public interest test must be satisfied to support the decision to prosecute. It will be appropriate to consider the use of offence-specific prosecutorial guidance for assisted suicide and question whether this lends support to the use of such an approach to guide the exercise of discretion in GNM cases or points to a need for caution. If a specific policy was viewed desirable, the feasibility of the undertaking must be evaluated. There is a need to critically consider the circumstances that may lead to a conclusion that it is not in the public interest to prosecute and whether a policy could be constructed to facilitate this task.