Medical Manslaughter Research Articles

Autonomy and Its Limits

Autonomy and Its Limits

Gross negligence manslaughter of intern doctors – scapegoating or justified?

Criminalizing unintentional mistakes in medicine as the offence of gross negligence manslaughter has always been a contentious issue. The threshold of prosecution is not well-defined, and even less clear when faced with a situation in which an intern doctor is held liable. This commentary attempts to review the current legal position of holding an intern doctor liable for gross negligence medical manslaughter.

The possibility of AI-induced medical manslaughter: Unexplainable decisions, epistemic vices, and a new dimension of moral luck

The use of artificial intelligence (AI) systems in healthcare provides a compelling case for a re-examination of ‘gross negligence’ as the basis for criminal liability. AI is a smart agency, often using self-learning architectures, with the capacity to make autonomous decisions. Healthcare practitioners (HCPs) will remain responsible for validating AI recommendations but will have to contend with challenges such as automation bias, the unexplainable nature of AI decisions, and an epistemic dilemma when clinicians and systems disagree. AI decisions are the result of long chains of sociotechnical complexity with the capacity for undetectable errors to be baked into systems, which introduces a new dimension of moral luck. The ‘advisory’ nature of AI decisions constructs a legal fiction, which may leave HCPs unjustly exposed to the legal and moral consequences when systems fail. On balance, these novel challenges point towards a legal test of subjective recklessness as the better option: it is practically necessary; falls within the historic range of the offence; and offers clarity, coherence, and a welcome reconnection with ethics.

Reforming Medical Manslaughter, the Scottish Way?

In responding to the Williams Review into gross negligence manslaughter in a medical setting, the Medical Protection Society called for English law to adopt the approach currently relied upon in Scotland. This article provides an overview of culpable homicide, before considering how any novel offence based on Scots law could be introduced in England and Wales. The benefits of culpable homicide over gross negligence manslaughter are addressed, with consideration of whether existing medical cases would attract punishment under any novel offence. It is argued that notwithstanding the higher threshold of culpability required by culpable homicide, Scots law cannot be considered a panacea. Rather, due to the detrimental impact that any novel crime would have on the existing structure of involuntary manslaughter, efforts to adopt the law north of the border within England and Wales should be avoided.

Medical manslaughter: the role of hindsight

Medical manslaughter: the role of hindsight

A Betrayal of Trust? Back to the Drawing Board for Medical Manslaughter

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.

Death caused by negligent medical care: Reconsidering the role of gross negligence manslaughter in the aftermath of Bawa-Garba

Gross negligence manslaughter is a well-established common law offence in English jurisdiction. Nevertheless, it remains a troubled area of law. Academic commentators, as well as the Law Commission, have frequently called for reform. We explore this offence through the prism of medical manslaughter and argue that the offence is insufficiently nuanced in certain situations of death caused by gross negligence. This applies particularly to complex professional circumstances where a coalescence of inter-linking factors may converge with disastrous results for the parties concerned. Using the clinical care model as an exemplar, we argue that relentless focus on the offender can result in a disproportionately high level of blame being foisted on an individual. On the basis of decision theory, we suggest that insufficient regard may be given to confounding contextual matters. Failure to address underlying systemic factors may impede wider patient safety initiatives such as professional medical candour and strategies designed for institutional improvements directed at broader societal benefit. We offer an alternative approach based upon principles of fair attribution of blame and transparency. A new statutory offence is suggested for a fault-based standard that is set by law that gives greater prominence to contextual matters. We argue for wider disposal options that include ancillary court orders for rectification of systems failures and more proactive engagement of the coronial process.

Betrayal of Trust in Medical Manslaughter

Despite efforts spanning 200 years, judges are yet to find a form of words that can explain adequately the meaning of ‘gross’ to a jury trying gross negligence medical manslaughter. Accordingly, those assessing whether to prosecute the crime are equally bewildered unable to calculate the likelihood of conviction. Jurors tasked with determining a defendant’s guilt are faced with a lack of clarity that often fails to render just results. We are led to conclude that an entirely different formula is required for assessing whether a defendant is guilty of manslaughter in the medical context. We propose that, rather than requiring the prosecution to prove that the defendant’s actions were truly, exceptionally bad (as currently required for gross negligence manslaughter), a more appropriate test would be whether there has been a betrayal of trust by the doctor towards his patient, resulting in death. This is akin to breaching a fiduciary duty. Through applying the test to the facts of well-known cases, we argue that the ‘betrayal of trust’ test would be easier for juries, defendants and practitioners to understand. Furthermore, the proposed test avoids the long-standing difficulty of circularity that exists in the current law and is able to separate more effectively the distinction between a doctor’s personal failings and the failings of the system. We conclude that though the ‘betrayal of trust’ test may result in fewer prosecutions, the corresponding impact on the medical profession would ultimately be beneficial to society.

Reflective practice and gross negligence manslaughter.

The collective imagination of the junior doctor workforce was captured by the case of Dr Hadiza Bawa-Garba, a paediatrics registrar given a 2-year suspended sentence for gross negligence manslaughter. Up and down the country, outrage and half-truths circulated in the doctors’ mess. The rumour that the GMC had used Dr Bawa-Garba’s written reflections against her was particularly difficult to dispel. It was not strictly true — Dr Bawa-Garba’s portfolio reflections had not been used by either side — but nevertheless resulted in many doctors discovering that theoretically the GMC could use their own reflections against them. The backlash that followed was at the top of the agenda in February 2018 when Jeremy Hunt commissioned a rapid review of medical gross negligence manslaughter, led by Professor Sir Norman Williams. The review, which released its report on …

Medical Manslaughter: Resolving Circularity

Robert Wheeler and Rupert Wheeler take a closer look at the legal intricacies behind gross negligence manslaughter

Medical manslaughter: where next?

The Williams Review has emphasised the need for a clear and consistent understanding of what constitutes GNM. What does this look like in practice, and what impact will it have?

Medical manslaughter in Hong Kong-how, why, and why not.

The increasing number of medical manslaughter cases in recent years raises concerns about the concept of criminal liability in medical negligence. Contemporary cases in Hong Kong have also generated debate on whether criminal law intervention is justified and effective at dealing with substandard medical practices. This paper examines the legal principles underlying the applicable legal offence of gross negligence manslaughter and the implications that recent events may have on patient care and the medical profession. The author argues that the criminalisation of medical mistakes can have a detrimental effect on clinical practice and patient welfare. At stake is the potential for a loss of mutual trust between the medical profession and the rest of society. Gross negligence manslaughter is an unstable legal concept, and criminal sanctions should at most be applied to conscious violations of established rules and standards but not unintentional errors. As we await the outcomes of ongoing cases in Hong Kong, there is an urgent need to uphold standards of practice and to nurture a robust culture of ethical awareness, compassionate care, and professionalism.

Medical Manslaughter: The Effect of Lay Findings of (Criminal) Gross Negligence on Professional Tribunals

Medical Manslaughter: The Effect of Lay Findings of (Criminal) Gross Negligence on Professional Tribunals

Gross Negligence (Medical) Manslaughter and the Puzzling Implications of Negligent Ignorance: Rose v R [2017] EWCA Crim 1168.

This commentary explores the Court of Appeal's decision in the case of Rose1 in order to assess the risk of liability for gross negligence manslaughter currently faced by the medical profession in the event that negligence causes the death of a patient. Subtly modifying the test established in Adomako,2Rose confirms that in order to be potentially liable, there must be a serious risk of death that was, rather than ought to have been, obvious/foreseeable to the defendant. Consequently, in more complex cases where the serious risk of death is not immediately obvious, negligently failing to assess risk seems to prevent potential liability on the basis that the putative defendant was in a position of negligent ignorance.

AB189. 167. When errors tip into the realm of medical manslaughter

AB189. 167. When errors tip into the realm of medical manslaughter

Medical manslaughter - time for a rethink?

Medical manslaughter - time for a rethink?

Medical manslaughter and the case of David Sellu

Medical manslaughter and the case of David Sellu

Improving healthcare through the use of ‘medical manslaughter’? Facts, fears and the future

The criminal law looks set to play a larger role in regulating healthcare. Until recently, health professionals only faced the prospect of criminal liability if it could be proved that their gross negligence resulted in the death of a patient. In such a case, the professional could face a charge of gross negligence manslaughter (GNM). Prosecutions for ‘medical manslaughter’ have generated concern among doctors worried about what is perceived as a rise in the number of doctors facing criminal prosecution and the impact prosecutions are having on healthcare practice. May more frequent resort to the criminal process damage rather than promote better health care? In seeking to try to answer this question, the first problem is that reliable data in this area about how many prosecutions are brought and how they fare are limited due to the way cases are recorded. What evidence does exist is often based on media reports or samples that are not representative. This paper will argue that, while the real risk of being prosecuted for medical manslaughter remains low, such fears should not be dismissed because, as Donald Berwick has argued, ‘fear is toxic’ – for health professionals and their patients.

Surviving a criminal prosecution for manslaughter

It is any healthcare professional's nightmare to receive a call telling them they are being investigated for misconduct or, worse, medical manslaughter. But that is what happened to surgeon Ken Woodburn. In this article he provides a very personal and honest account of what he and his family went through.

Medical manslaughter: a recent history

Medical manslaughter: a recent history