A Betrayal of Trust? Back to the Drawing Board for Medical Manslaughter
| Date | 01 October 2021 |
| Published date | 01 October 2021 |
| DOI | 10.1177/00220183211009319 |
| Subject Matter | Articles |
Article
A Betrayal of Trust? Back
to the Drawing Board for Medical
Manslaughter
Jonathan Lilleker
Teesside University, UK
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.
Keywords
Medical manslaughter, gross negligence, betrayal of trust, culpability, moral blameworthiness
Introduction
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 that
Corresponding author:
Jonathan Lilleker, Graduate Tutor, Teesside University, Borough Road, Tees Valley, Middlesbrough TS1 3BX, UK.
E-mail: J.Lilleker@tees.ac.uk
1. M Brazier and N Allen, ‘Criminalizing Medical Malpractice’ in CA Erin and S Ost (eds), The Criminal Justice System and
Health Care (OUP, Oxford 2007) 15–27; O Quick, ‘Medical Killing: Need for a Specific Offence?’ in CMV Clarkson and SR
Cunningham (eds), Criminal Liability for Non-Aggressive Death (Routledge, Abingdon 2008) 155–75; O Quick, ‘Medicine,
Mistakes and Manslaughter: A Criminal Combination?’ (2010) 69 CLJ 186; M Brazier, M Kazarian and D Griffiths, ‘Criminal
Responsibility for Medical Malpractice in France’ (2011) 27 PN 188; D Griffiths and A Sanders, ‘The Road to the Dock:
Prosecution Decision Making in Medical Manslaughter Cases’ in D Griffiths and A Sanders (eds), Bioethics, Medicine and the
Criminal Law: Volume 2, Medicine, Crime and Society (CUP, Cambridge 2013) 117–58; D Archard, ‘Criminalising Medical
Negligence’ in A Alghrani, R Bennett and S Ost (eds), Bioethics, Medicine and the Criminal Law: Volume 1, The Criminal Law
and Bioethical Conflict: Walking the Tightrope (CUP, Cambridge 2013) 236–50; M Brazier and others, ‘Improving Healthcare
Through the Use of Medical Manslaughter? Facts, Fear the Future’ (2016) 22 C Risk 88; Elizabeth Stuart-Cole, ‘Medical
Manslaughter: The Effect of Lay Findings of (Criminal) Gross Negligence on Professional Tribunals’ (2018) 82 JCL 197; J
The Journal of Criminal Law
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DOI: 10.1177/00220183211009319
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2021, Vol. 85(5) 335–361
physicians ought to be subject to the criminal law, a solution which properly reflects the blame-
worthiness of the errant clinician, yet does not afford medical professionals unwarranted protection,
remains elusive.
2
In order to provide a more nuanced approach to the criminalisation of fatal medical errors, academic
commentators have sought to raise the threshold of criminal responsibility to subjective recklessness.
3
Yet despite the commission of two independent reviews into gross negligence manslaughter within a
medical setting,
4
and the wealth of academic support for legal reform, the substantive law remains
unsatisfactory.
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.
5
Despite its
potential, to date little analysis of this betrayal of trust test has been undertaken. This article will
therefore provide an overview of the key flaws within gross negligence manslaughter, before under-
taking an examination of the authors’ proposals to determine whether their test ameliorates the issues
that plague the current law. The merits of their approach will be examined, before the potential flaws
within the test are detailed. As a result of this analysis, it will be argued that the new test cannot be
employed as a means with which to successfully reform the current law.
Gross Negligence Manslaughter Revisited
At present, unintentional fatal clinical errors committed by doctors with varying degrees of culpability
are encompassed by the unwieldy and unforgiving offence of gross negligence manslaughter.
6
Criticised
as amounting to little more than an ‘emotionally satisfying way to exact retribution’,
7
it is alleged that
pursuing criminal sanctions against doctors who lack moral blame will result in the adoption of ‘defen-
sive medicine’, and a shortage of practitioners in ‘high-risk’ specialities.
8
As is known, to secure conviction for gross negligence manslaughter, the prosecution must establish
five elements:
(a) the defendant owed an existing duty of care to the victim;
(b) the defendant negligently breached that duty of care;
(c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;
(d) the breach of that duty caused the death of the victim;
(e) the circumstances of the breach were tr uly exceptionally bad and so reprehensib le as to justify the
conclusion that it amounted to gross negligence and required criminal sanction.
9
Vaughan, O Quick and D Griffiths, ‘Medical Manslaughter: Where Next?’ (2018) 100 RCS Bull 251; Jo Samanta and Ash
Samanta, ‘Gross Negligence Manslaughter and the Delivery of Healthcare: A Time for Change?’ (2019) 26 EJHL 389.
2. Quick, ‘Medical Killing’ (n 1) 156.
3. A McCall Smith, ‘Criminal Negligence and the Incompetent Doctor’ (1993) 1 Med L Rev 336, 349; Brazier and Allen (n 1) 27;
Quick, ‘Medicine, Mistakes and Manslaughter’ (n 1) 203; Brazier, Kazarian and Griffiths (n 1) 199.
4. Department of Health, Gross Negligence Manslaughter in Healthcare: The Report of a Rapid Policy Review (Department of
Health, 2018); General Medical Council, Independent Review of Gross Negligence Manslaughter and Culpable Homicide
(General Medical Council, London 2019).
5. R Wheeler and R Wheeler, ‘Betrayal of Trust in Medical Manslaughter’ (2019) 83 JCL 489.
6. Quick, ‘Medicine, Mistakes and Manslaughter’ (n 1) 203.
7. RE Ferner and SE McDowell, ‘Doctors Charged with Manslaughter in the Course of Medical Practice, 1795–2005: A Literature
Review’ (2006) 99 J R Soc Med 309, 314.
8. AC Elias-Jones, ‘Medical Manslaughter or Systems Failure?’ (2004) 10 C Risk 29, 30.
9. R v Rose [2017] EWCA Crim 1168 at [77].
336 The Journal of Criminal Law 85(5)
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