Prosecuting ‘Gross’ Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service

Publication Date01 September 2006
AuthorOliver Quick
Date01 September 2006
DOIhttp://doi.org/10.1111/j.1467-6478.2006.00365.x
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 3, SEPTEMBER 2006
ISSN: 0263-323X, pp. 421±50
Prosecuting `Gross' Medical Negligence: Manslaughter,
Discretion, and the Crown Prosecution Service
Oliver Quick*
This article examines prosecutions of health care professionals for
gross negligence manslaughter following fatal errors committed in the
course of their work. Unease has long surrounded the use of `gross
negligence' as a form of criminal liability, and particularly as it
applies to health care professions operating in high-risk settings. The
recent dramatic rise of such prosecutions calls for a closer under-
standing of the processes by which important prosecutorial decisions
are made. In particular, this calls for an investigation into the exercise
of discretion by prosecutors in interpreting the loosely defined and
contested concept of gross negligence. This article analyses data
obtained from a statistical analysis of `medical manslaughter' cases
and also from interviews with crown prosecutors. Discussion of the
main findings leads to the conclusion that the offence of gross
negligence manslaughter is incapable of any objective and fair
measurement and ought to be abolished.
INTRODUCTION
This article explores the use of discretion by prosecutors in deciding whether
or not to prosecute health care professionals for manslaughter following fatal
negligent errors. Although relatively rare, such prosecutions have increased
notably over the past twenty years. Whilst this increase has not gone
unnoticed,
1
there has been little research exploring the decision-making
421
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law, University of Bristol, Wills Memorial Building, Queens
Road, Bristol BS8 1RJ, England
Oliver.Quick@bristol.ac.uk
Iamgrateful to the Socio-Legal Studies Association for funding this research through its
small grants scheme and to the Crown Prosecution Service for granting me research
access. Thanks also go to Dave Cowan, Gwynn Davis, Richard Young, and the
anonymous reviewers for their helpful comments.
1 R. Ferner, `Medication Errors that have led to manslaughter charges' (2000) 321
Brit. Medical J. 1212; R. Ferner and S. McDowell, `Doctors charged with
process in such cases. In particular, the important role of the prosecutor in
determining the justice system's response to this contested and controversial
crime remains hidden and unexplored.
2
This research analyses the appro-
priateness of this offence category by drawing on two data sets: a statistical
analysis of all known prosecutions of medical manslaughter since 2000, and
interviews conducted with Crown Prosecutors at an office of the Casework
Directorate of the Crown Prosecution Service (CPS). The law of gross
negligence manslaughter is necessarily vague and its enforcement susceptible
to the vagaries of various factors which inform discretionary decisions. This
research seeks to gain a greater understanding of the processes by which `gross
negligence' is interpreted in this context. How do prosecutors exercise discre-
tion in handling the inherent definitional vagueness of this offence? And how
can we evaluate the way that criminal law sometimes deals with professionals
who err in their medical practice? Discussion of the main findings leads to the
conclusion that the offence of gross negligence manslaughter is incapable of
clear and objective measurement and ought to be abolished. The merits of
appropriate alternatives to the offence of gross negligence manslaughter are
also briefly considered. First, however, it is necessary to sketch the legal
framework within which such prosecutorial decisions are made.
INVOLUNTARY MANSLAUGHTER
Involuntary manslaughter is an amorphous area of law dealing with a diverse
collection of unintentional killings.
3
Liability is established in three different
ways: through unlawful and dangerous acts, subjective recklessness, and
gross negligence. It is unusual among serious offences in using the notion of
gross negligence, a contested and controversial concept challenging the
orthodox subjectivist demand for intention or recklessness as the appropriate
forms of mens rea, and criticized as inappropriate.
4
That said, founding
criminal liability on negligence is not without considerable scholarly sup-
port; Hart supported the classification of negligent conduct as criminal,
provided the individual was of normal capacity,
5
while Glanville Williams
identified a utilitarian justification for imposing negligence liability, reason-
422
Manslaughter in the course of medical practice, 1795±2005: a literature review'
(2006) 99 J. of the Royal Society of Medicine 309±14.
2 The main study of the CPS remains M. McConville, A. Sanders, and R. Leng, The
Case for the Prosecution: Police Suspects and the Construction of Criminality
(1993) 126.
3 `[O]f all crimes manslaughter appears to afford most difficulties of definition, for it
concerns homicide in so many and so varying conditions', Andrews v. DPP [1937]
A.C. 576 per Lord Atkin.
4J.Hall, `Negligent behaviour should be excluded from penal liability' (1963) 63
Columbia Law Rev. 632±44.
5 H.L.A. Hart `Negligence, Mens Rea and Criminal Responsibility' in Punishment
and Responsibility: Essays in the Philosophy of Law (1968) 136±57, at 147.
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

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