Reforming Medical Manslaughter, the Scottish Way?
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/00220183231174146 |
| Author | Jonathan Lilleker |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Reforming Medical Manslaughter,
the Scottish Way?
Jonathan Lilleker
Teesside University, UK
Abstract
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 ben-
efits of culpable homicide over gross negligence manslaughter are addressed, with consider-
ation 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 homi-
cide, 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.
Keywords
Medical manslaughter, culpable homicide, theories of culpability, Scots criminal law
Corresponding author:
Jonathan Lilleker, Teesside University, Borough Road, Tees Valley, Middlesbrough, TS1 3BX, UK.
E-mail: j.lilleker@tees.ac.uk
Article
The Journal of Criminal Law
2023, Vol. 87(3) 161–191
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231174146
journals.sagepub.com/home/clj
Introduction
The continuing trend of subjecting healthcare professionals to criminal punishment has recently led to a
spate of novel proposals aimed at reforming the legal response to blameworthy medical errors. Although
the medico-legal literature was once dominated by calls to adopt subjective recklessness,
1
it is now pos-
sible to identify a number of alternatives to this often-praised
2
model.
3
Amongst the proposals, support exists for English law to adopt an approach akin to the Scottish
offence of culpable homicide,
4
with advocates seemingly impressed by the absence of criminal
charges against clinicians north of the border.
5
However, this dearth of prosecutions has arguably dis-
tracted from any meaningful evaluation of the offence when applied to fatal medical errors. To evaluate
the benefits of culpable homicide over gross negligence, this article provides an initial overview of the
Scottish offence, before undertaking an examination of the potential improvements that any comparable
offence based on culpable homicide may bring. Consideration of how the new offence might operate
within the existing homicide ladder within England and Wales will be provided, with an analysis of
how the ambiguities present within culpable homicide would fall short of bringing the clarity sought
by both lawyers and medics alike. It is argued that culpable homicide cannot be advanced as a plausible
mode of reform for the criminalisation of fatal blameworthy medical errors.
Culpable Homicide: Brief Overview
Before determining whether culpable homicide offers an appropriate solution to the punishment of
blameworthy medical mistakes, the Scottish approach to homicide must be understood. As within
England and Wales, a twofold classification is employed, with unlawful killings classified as either
1. A. McCall Smith, ‘Criminal Negligence and the Incompetent Doctor’(1993) 1 Medical Law Review 336, 349; M. Brazier and
N. Allen, ‘Criminalizing Medical Malpractice’in C.A. Erin and S. Ost (eds.), The Criminal Justice System and Health Care
(Oxford University Press: Oxford, 2007) 27; O. Quick, ‘Medicine, Mistakes and Manslaughter: A Criminal Combination?’
(2010) 69 Cambridge Law Journal 186, 203; M. Brazier, M. Kazarian and D. Griffiths, ‘Criminal Responsibility for Medical
Malpractice in France’(2011) 27 Professional Negligence 188, 199.
2. S. Cunningham, ‘Recklessness: Being Reckless and Acting Recklessly’(2010) 21 Kings Law Journal 445, 466.
3. In particular, a reconceptualised offence based on a breach of a fiduciary duty amounting to a betrayal of trust, R. Wheeler and
R. Wheeler, ‘Betrayal of Trust in Medical Manslaughter’(2019) 83 Journal of Criminal Law 489, a shift to restorative justice,
A.M. Farrell, A. Alghrani and M. Kazarian, ‘Gross Negligence Manslaughter In Healthcare: Time for a Restorative Justice
Approach?’(2020) 28 Medical Law Review 526, a ‘sliding scale test’, relying on principles of ‘civil and administrative law’,
M. Robson, J. Maskill and W. Brookbanks ‘Doctors Are Aggrieved-Should They Be? Gross Negligence Manslaughter and
the Culpable Doctor’(2020) 84 Journal of Criminal Law 312, 327, a ‘reckless homicide offence’loosely based on the
French faute caractérisée and mise en danger délibérée, M. Kazarian, Criminalising Medical Malpractice: A Comparative
Perspective (Routledge: Abingdon, 2020) 22, 109, and a novel crime of ‘death caused by grave professional negligence’,
A. Samanta and J. Samanta, ‘Death caused by Negligent Medical Care: Reconsidering the Role of Gross Negligence
Manslaughter in the Aftermath of Bawa-Garba’(2021) 21 Medical Law International 293, 312–315.
4. R.A. Hendry, P. Bradshaw, L. Hanington and T. Reynolds, Medical Protection Society: Evidence to the Professor Sir Norman
Williams Review - Gross Negligence Manslaughter in Healthcare (MPS, 2018) [R2]
docs/mp/Press-Releases/gnm-submission-to-prof-sir-norman-williams-120318a.pdf> accessed 18 November 2021.
5. Ibid at [18]–[19].
162 The Journal of Criminal Law 87(3)
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