Betrayal of Trust in Medical Manslaughter
| Author | Robert Wheeler,Rupert Wheeler |
| DOI | 10.1177/0022018319877785 |
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| Subject Matter | Comment |
Comment
Betrayal of Trust
in Medical Manslaughter
Rupert Wheeler
Barrister, UK; Samson Law Associates, Cayman Islands, MA BA (Hons)
Robert Wheeler
Surgeon, UK. UHS MS FRCS FRCPCH LLB (Hons) LLM
Abstract
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 defen-
dant’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 defen-
dant 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
wouldbewhethertherehasbeenabetrayal 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.
Keywords
Gross negligence, medical manslaughter, betrayal of trust, circularity, Adomako
Corresponding author:
Rupert Wheeler, Barrister, 23 Essex Street Chambers, 23 Essex Street, London, WC2R 3AA, UK.
E-mail: rupertwheeler@23es.com
The Journal of Criminal Law
2019, Vol. 83(6) 489–502
ªThe Author(s) 2019
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DOI: 10.1177/0022018319877785
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