The Criminal Justice System and Health Care

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As the editors of The Criminal Justice System and Health Care point out (p. 4), the intersection between criminal law and medicine has been somewhat neglected in the academic literature (p. 33). The theme is an important one, and this volume covers some interesting ground. Three main areas are examined: the criminalisation of medical misadventure; medical behaviour which potentially shortens life; and disease transmission. The first four chapters on the criminalisation of medical misadventure link together well, giving the reader a well-rounded picture of the debate over the use of gross negligence manslaughter against individual health care professionals, and the question whether a subjective recklessness standard should be preferred (Brazier and Allen, Quick) and the possible alternatives to an individual-focused approach (Quick, Allen). The use of language deserves a preliminary mention. Quick notes that ‘language usage may be an important factor in shaping responses’ to medical misadventure (p. 33). For example, Merry uses ‘accidental’ rather than ‘negligent’ when describing cases of iatrogenic harm (p. 83). A distinction has been drawn in the literature between errors and violations, as described by Merry and McCall Smith: Errors are characteristically never deliberate. Violations … must be defined in the context of accepted rules, norms or principles, and constitute a deliberate deviation from them. They are not inevitably reprehensible, and indeed may be motivated by the best of intentions, yet they do involve choice – there is in a violation a clear volitional component. Violations are therefore always avoidable, although factors within the system or organisation may at times make it very difficult in practice to avoid them. Errors, by contrast, are unintentional and cannot be avoided simply through the exercise of choice.1