Doctors Are Aggrieved—Should They Be? Gross Negligence Manslaughter and the Culpable Doctor
| Author | Michelle Robson,Warren Brookbanks,Jon Maskill |
| Date | 01 August 2020 |
| DOI | 10.1177/0022018320946498 |
| Published date | 01 August 2020 |
| Subject Matter | Articles |
Article
Doctors Are Aggrieved—
Should They Be? Gross
Negligence Manslaughter
and the Culpable Doctor
Michelle Robson
Northumbria University, UK
Jon Maskill
Northumbria University, UK
Warren Brookbanks
Auckland University of Technology, New Zealand
Abstract
Doctors may also be criminals. Mercifully, this is a rare event but no health professional is
infallible, mistakes happen and the challenge is to distinguish inadvertence from wilful disregard
for the consequences. Healthcare professionals are uneasy about the readiness of the current
law to attribute criminal responsibility accompanied by a failure to recognise the highly
pressurised context in which sub-standard practice occurs. This article argues that the offence
of gross negligence manslaughter is improperly defined and fails to target those doctors whom
society should criminalise. Alternatives to gross negligence manslaughter to include culpable
homicide adopted in Scotland and the major departure test favoured by New Zealand are
considered before advocating a more radical approach—the sliding scale of negligence. Using
existing tests in civil and administrative law, a more objective test of gross negligence is pro-
posed, with culpability as a mandatory requirement for a doctor to be convicted of a crime. It is
contended the law must move away from the stance a patient’s death is required for medical
negligence to become a crime, an outcome bias, to a conduct biased offence. There is no
underlying reason why culpable gross negligence causing serious harm should not also be
subject to criminal sanction. The recent sentencing guidelines demonstrate the law is
sophisticated enough to distinguish reprehensible conduct from careless behaviour. It is now
time for the legal test to also acknowledge all the circumstances of the alleged crime.
Keywords
Gross negligence manslaughter, negligence, culpability, moral luck
Corresponding author:
Michelle Robson, Medical and Mental Health Law Research Interest Group (MELRIG), Northumbria Law School, Northumbria
University, Newcastle upon Tyne, NE8 1ST, UK.
E-mail: michelle.robson@northumbria.ac.uk
The Journal of Criminal Law
2020, Vol. 84(4) 312–340
ªThe Author(s) 2020
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DOI: 10.1177/0022018320946498
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Introduction—Gross Negligence Manslaughter and Doctors
The criminal doctor makes for a good story.
1
The fall and resurgence of Drs David Sellu and Hadiza
Bawa-Garba has been as dramatic as it has been controversial.
2
Two previously anonymous medical
professionals who found themselves not only under the media spotlight and labelled a criminal, but in the
case of David Sellu incarcerated in a Belmarsh cell. Their very personal stories have reignited the debate
whether doctors should be subject to the criminal law and more particularly whether doctors should, and
if so how, be prosecuted for gross negligence manslaughter. In a speech given to the Medico-Legal
Society, Dr Michael Powers QC , responding to concerns that pro secutions take place ‘at the least
excuse’, strongly advocated the role of the criminal law, commenting:
‘We have got to have an element of control over excessively bad behaviour ...society has the right to control
bad professional care’. Adding, ‘whether or not a doctor is going to find himself on a manslaughter charge
will really depend on how much thought, how much care and how much attention he is giving to what he
does ...The cases where we have seen convictions are cases which stick out like a barn door’.
3
Some writers argue recent convictions have occurred where the barn door was ajar rather than gaping
open.
4
If Dr Powers’ contention is correct, and bad clinical care should be prosecuted, it is necessary to
address what conduct should be caught by the criminal law, as opposed to sub-standard conduct that
should be left to the civil courts or professional tribunals. More specifically, the law must define the
standard of culpability deserving of criminal sanction.
The grounds of doctors’ concerns are broadly that the law of gross ne gligence manslaughter is
arbitrary, and even the very limited prosecutions are counterproductive if doctors remain unsure as to
what it is they are doing so badly wrong that they may end up in prison. Doctors’ grievances can perhaps
be broken down into two elements:
First, the current offence does not identify the ‘bad’ doctors; it unearths negligent doctors whose
patients are unlucky enough to die. The scope of the offence is uncertain.
Second, professionals acting in good faith should not be labelled ‘criminals’. The element of inten-
tionally making a bad choice, the prerequisite mens rea of all serious crimes, is often unclear or even
absent. This culpability ingredient of the offence is poorly defined.
Beginning with an overview of the offence of gross negligence manslaughter and a critique of the
current judicial approach, this article addresses what form an alternative test might take. Brief consider-
ation is given to the law in other jurisdictions, the Scottish offence of culpable homicide and New
Zealand’s major departure test, before exploring further the circumstances for negligent conduct to be
considered culpable and the foundations for a new direction. Pivotal to this discussion is the distinction
between an error and a violation and, it is maintained, the criminalisation of negligent conduct should only
occur when the defendant is aware of a risk, elects to run that risk and had the opportunity to act differently.
The debate then takes a more radical turn and proposes a new test, the sliding scale of negligence. By
bringing civil and criminal law principles together, the bar between simple negligence and gross negli-
gence is drawn with greater clarity, leaving the question of culpability to be determined separately along
the lines recently espoused by the Sentencing Council. Sentencing guidelines, and the potential widening
of the offence to include culpable conduct causing serious harm, not just death, are finally considered.
5
1. M Brazier, S Devaney, D Griffiths, A Mullock and H Quirk, ‘Improving Healthcare Through the Use of Medical Manslaughter?
Facts, Fears and the Future’ (2016) 22(5–6) Clinical Risk 88–93, 89.
2. R v Bawa-Garba [2016] EWCA Crim 1841; R v Sellu [2016] EWCA Crim 1716.
3. Dr M J Powers QC, ‘Manslaughter—How Did We Get Here?’ (2005) 73(4) Medico-Legal Journal 123–134, 128.
4. See A Alghrani, M Brazier, A Farrell, D Griffiths and N Allen, ‘Healthcare Scandals in the NHS: Crime and Punishment’
(2011) 37 Journal of Medical Ethics 230–232; J Vaughan, O Quick and D Griffiths, ‘Medical Manslaughter: Where Next’
(2018) Bulletin of the Royal College of Surgeons of England, 100 (6), pp. 251-254.
5. See later discussion; ‘Moral Luck’ and Sentencing—The Final Bastion.
Robson et al. 313
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