Doctors Are Aggrieved—Should They Be? Gross Negligence Manslaughter and the Culpable Doctor

Tort to Crime: Negligence to Gross Negligence

Occasionally, professionals cause fatal harm to people to whom they owe a duty of care by falling so far below a standard that the matter becomes one of interest to the state. Lord Hewart addressed this almost 100 years ago in R v Bateman. ¹¹

Dr Bateman attempted the delivery of a breech baby with forceps and then, having failed, tried to turn the baby manually to effect a more favourable presentation. Ultimately, the child was stillborn and the mother left with a number of internal injuries from which she died. ¹² The judge in the court of first instance directed the jury to find Dr Bateman guilty of gross negligence manslaughter if they found he had been negligent. ¹³ The conviction was quashed by the Court of Appeal and, in giving his judgment, Lord Hewart made some notable points:

In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In the criminal court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea. ¹⁴

For Lord Hewart, mens rea was a vital ingredient for a conviction of gross negligence manslaughter.

The House of Lords affirmed Lord Hewart’s general description of the offence of gross negligence manslaughter in R v Adomako. ¹⁶

Dr Adomako, a locum anaesthetist, failed to perform basic monitoring of his patient during an operation and then failed to react properly to clear evidence of inadequate ventilation until too late. ¹⁷ His patient subsequently died.

The Court of Appeal addressed the question of the true legal basis for involuntary manslaughter by breach of duty. This was deemed to be gross negligence as opposed to recklessness. ¹⁸ Helpfully, gross negligence, the crux of the matter, was defined as proof of any of the following states of mind:

indifference to an obvious risk of injury to health;

Adomako’s case was then referred to the House of Lords which upheld his conviction and agreed that gross negligence was the test of criminality. ²⁰ Disappointingly, there was little comment on what turned simple negligence into gross negligence. Of this, Lord Mackay said:

This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. ²¹

These remarks seemingly left open the question of how, prospectively, a doctor can determine whether a medical error could result in a prison sentence; an unease that would be felt keenly for all those involved in the care of patients with potentially fatal illnesses.

More recently, Sir Brian Leveson summarised the five critical components of the offence in R v Rudling as,

the defendant owed a duty of care to the deceased;

This approach was confirmed in R v Rose. ²³ In Rose, the defendant optometrist negligently failed to examine the retinas of a child. ²⁴ Had she done so, she would have identified papilloedema, leading to a diagnosis of hydrocephalus, which, left untreated, is fatal. ²⁵ The defendant’s failure to examine the eyes of the child resulted in his condition being undiagnosed and he died some five months later. Diagnosing papilloedema and failing to take any further action would have been grossly negligent, but in failing to examine the eye at all the optometrist would not have been aware of ‘a serious and obvious risk of death’ at the time of the breach of duty. ²⁶ This, Sir Brian Leveson judged, precluded the offence of gross negligence and Rose was found simply negligent.

Rose suggests that the clinician who negligently fails to examine an apparently moderately sick patient will fare better than the conscientious clinician who attends the same patient but fails to observe that they are, in fact, very sick. ²⁷

Herein lies the two heads of medical concern about the offence of gross negligence manslaughter: certainty and the degree of culpability required to merit imprisonment.

Other Options—Is There a Better Way?

The preceding paragraphs have provided a brief insight into the problems with the current law. Finding a replacement test is an altogether trickier task. The Law Commission’s proposed replacement of killing by gross carelessness was dismissed by Quick as ‘nothing more than a linguistic modernization of the status quo’, which he contends has failed to ‘address the fundamental objection to negligence-based criminal liability’. ⁵⁹ He favours the test put forward by Tadros which focuses on the breach of duty of the perpetrator either by failing to investigate risks or by being wilfully blind to the existence of a risk. ⁶⁰ However, this approach would possibly incarcerate doctors such as Prentice and Sullman who failed to investigate the risks of injecting drugs intrathecally even though their fatal omission to investigate risk was borne though ignorance, not indifference. ⁶¹ Objectively, by way of contrast to the hypothetical ‘reasonable person’, they were reckless but subjectively, given their inexperience and all the circumstances they found themselves in, they were merely negligent. A more satisfactory stance is that taken by Mullock who maintains that the appropriate basis for liability is subjective recklessness ⁶² or McCall Smith who contends that prosecutions should only occur when there is reckless conduct and the perpetrator ‘deliberately and culpably took a risk with their patients’. ⁶³ Along similar lines, Brazier opines that ‘only such conduct pursued with disregard for the life of others should merit punishment’. ⁶⁴ More recently, Crosby advocates that gross negligence manslaughter is replaced with reckless manslaughter using a capacity-based approach that emphasises the need to ‘appreciate a risk and the context in which the proscribed conduct occurred’. While the move towards greater recognition of ‘all the circumstances’ is to be welcomed, a test founded in negligence would, it is contended, more clearly define the error from the violation. ⁶⁵

The case for a test of subjective recklessness has always been highly persuasive but has thus far failed to gain traction outside of academia. Therefore, having outlined the problems with English law and gross negligence manslaughter, the debate now broadens to explore a wider range of alternatives to the present regime. Beginning with a review of two jurisdictions’ approach to gross negligence manslaughter, the discussion then advocates a new model, grounded in clinical experience and adhering to already established legal principles, which may yet salvage an offence labelled as ‘something of a dog’s breakfast’. ⁶⁶

Scotland

In Scottish criminal law, there is no such offence as gross negligence manslaughter. There is culpable homicide, which is either voluntary or involuntary. ⁶⁸ These broadly resemble English voluntary and involuntary manslaughter. It is an involuntary culpable homicide which would, perhaps, capture the essence of gross negligence manslaughter. ⁶⁹

The mens rea of this type of unintentional, but nevertheless, culpable homicide is ‘gross, or wicked negligence, something amounting, or at any rate analogous, to an indifference to consequences’. ⁷⁰

Nevertheless, in keeping with subjective recklessness, it is emphasised that an analysis of defendant’s state of mind is crucial to any conviction:

[M]ens rea is, and remains, a necessary and significant element in the crime of (‘lawful act’) culpable homicide. That element may…be proved in various ways, including proof by inference from proven facts. But it is…erroneous to suppose that the actual state of mind of a person accused of culpable homicide of this kind can be ignored and guilt or innocence determined solely on the basis of proof that the conduct in question fell below an objectively set standard. ⁷¹

This constitutes a degree of contemporaneous awareness, on the part of the defendant, that they were taking a risk that would be considered unnecessary by reference to a ‘reasonable person’. Inadvertence, unless grounded in an intention to be unaware of risks, will not suffice. ⁷² In most Anglo-American jurisdictions, the difference between recklessness and negligence hinges on this contemporary awareness of risk. ⁷³

The English offence recognises that recklessness contains all the ingredients required of gross negligence and that mere negligence is not enough. However, the Scottish system does nothing to fill the gap between mere negligence and recklessness. Gross negligence manslaughter includes not only a conscious disregard but also inadvertence in respect of an obvious matter which the defendant should have addressed. ⁷⁴ The parallels with subjective and objective recklessness are plain to see: Did the defendant foresee the risk and take it anyway (subjective) or was the defendant blind to the risk which would have been blatantly obvious to another professional in the same position (objective)? ⁷⁵

Culpability is key to both Scottish and English law, but whereas the former only finds culpability in a contemporaneous conscious disregard, the latter regards manifestly poor performance as culpable in its own right.

There is another approach, which deals with fatal professional incompetence by mending the defendant as opposed to simply punishing them.

New Zealand

Under New Zealand law, manslaughter is a type of culpable homicide which may be committed by an unlawful act, or an omission without lawful excuse to perform or observe a legal duty, or by both combined. ⁷⁶ The ‘unlawful act’, must be a criminal offence and is identified as a breach of any Act, regulation, rule or by-law. ⁷⁷ An ‘unlawful act’ usually, though not exclusively, relates to public safety. For an act to be regarded as unlawful there must be, (1) the corresponding mental state (mens rea) to render it an offence, and (2) the relevant act must be done without lawful justification or excuse. Where medical professionals are implicated in the death of a patient, and a police prosecution follows, a charge of manslaughter may be based on either an ‘unlawful act’ or the failure ‘to perform a legal duty’. However, the degree to which the defendant must have deviated from an accepted standard has seen substantial change in the last two decades. The case of R v Yogasakaran ⁷⁸ was probably the catalyst for this change.

At the end of routine surgery, a patient bit down on their breathing tube and effectively cut off their own oxygen supply. This is not an unusual occurrence and many anaesthetists will insert a bite block to prevent this from happening. Other anaesthetists will simply wait until the biting stops and then remove the tube. Occasionally, the patient will bite so hard and for so long that the tube becomes occluded and they begin to turn blue. Dr Yogasakaran’s patient did just this so he quite reasonably decided to administer doxapram to hasten emergence from anaesthesia (and thus terminate the biting). Unfortunately, the ampoule he opened and administered in haste was dopamine and not doxapram. The two very different drugs had been erroneously put together in the same container by a third party. Dr Yogasakaran could not explain what had happened based on the assumption of doxapram administration, consequently he further examined the opened ampoules and volunteered the error he had made to the receiving intensive care team. Unfortunately, the patient had sustained fatal physiological stresses and died shortly later. Dr Yogasakaran’s honest mistake resulted in a patient death and Yogasakaran’s criminal conviction.

Yogasakaran committed his fatal blunder in 1987 and this was proceeded by a number of cases with varying degrees of culpability. ⁷⁹ Naturally, there was widespread unease among the medical profession and after much lobbying, the Act was amended in 1997.

The Crimes Amendment Act 1997 added a new s 150A to the Crimes Act 1961. Liability for manslaughter by failure to perform a legal duty now required proof of a ‘major departure’ from the standard of care expected of a reasonable person. ⁸⁰ Since 2012, the same threshold test now also applies in instances where manslaughter by an unlawful act is founded on proof of negligence. Effectively, as in England, this brings negligent acts or omissions under the same umbrella where there exists a duty of care.

Since 1997, when the ordinary negligence threshold was lifted to effectively one of gross negligence, there has been only one case of alleged medical manslaughter. ⁸¹ This case came following a period of 10 years (1996–2006) during which no health practitioner had been convicted of medical manslaughter, leading Professor Ron Paterson to suggest that there was ‘no realistic prospect of revival of the use of the criminal law in this area’. ⁸²

Although there have been a handful of prosecutions of health practitioners in New Zealand since the 1997 reforms, the place and usefulness of the criminal law in a medical context is now an increasingly rare event. ⁸³ Prosecutions for medical manslaughter, it seems, have ‘all but ceased’. ⁸⁴ However, since the changes in the Crimes Act, health professionals and providers have been encouraged to report any unintended, unexpected or unplanned events to the Health Quality & Safety Commission. The Commission runs an Adverse Events Learning Programme which reviews events and shares lessons learned in order to improve consumer safety. ⁸⁵

Comment on the Major Departure Test

An enduring criticism of the gross negligence model, as outlined at the beginning of this article, is the very vagueness of the offence. Quick contends that the lack of certainty with the offence has resulted in an inconsistent approach to prosecutions which has been felt more keenly by those ‘operating in error-ridden activities who are exposed to risk of prosecution by virtue of their socially vital work, and often at the mercy of moral luck’. ⁸⁶ The ‘major departure’ test has been described as a ‘good formulation and avoids any difficulties which might be thought to apply to the term “gross negligence”’. ⁸⁷ This is true in so far that the ‘major departure’ test focuses on conduct rather than outcome, but it remains dogged by the same ambiguities and imprecision that have vexed the ‘gross negligence’ test; indeed, any model where a subjective epithet is applied. In New Zealand, however, the virtual abandonment of criminal prosecutions for medical manslaughter is evidence that they have seemingly adopted the view of Ron Paterson who maintains that most New Zealand patient advocacy groups, doctors and lawyers are now agreed that the criminal law should only be used in healthcare settings in cases of deliberate harm or recklessness.

Errors Versus Violations

Merry and Brookbanks state ‘morally relevant wrongdoing can only properly be identified if the actions of those whose responsibility is in question are subjected to analysis designed to identify states of mind that are truly culpable’. ⁹¹ They continue by giving a detailed analysis of unintentional medical deaths by synthesising the perspectives of an eminent legal mind and a doctor practising the most manslaughter prone specialty of them all, anaesthesia. ⁹² For Merry and Brookbanks, two broad groups of mistakes prevail; the ‘error’ and the ‘violation’. An error is the sort of mistake that could be made by anyone just by simply being a human rather than a machine. They define an error in colloquial terms as ‘when one tries to do the right thing but actually does the wrong thing’. ⁹³ Scientific evidence suggests that many doctors will commit this type of error at some point in their working life and anecdotal evidence suggests that most anaesthetists will make this kind of mistake during their careers. ⁹⁴ Errors are further subdivided but all are viewed as lacking any culpable elements with the exception of the ‘egregious error’ which equates to the ‘grossest ignorance’ described in Williamson. ⁹⁵ This might relate to a culpable attitude, but a failure of regulation may also feature. In their view, with the exception of the said egregious error, errors cannot be culpable as they are actions which ‘do not represent an informed choice of the resulting harm’. ⁹⁶ For Merry and Brookbanks, it is the ability or the unexercised capacity to do things differently that is a necessary ingredient for culpability and criminal sanction. ⁹⁷

‘Violations’ are defined as intentional deviations ‘from those practices deemed necessary…to maintain the safe operation of a potentially hazardous system’. ⁹⁸ The doctor has made a decision ‘to do something in the knowledge that the given action or decision will place at risk some aspect of safety or of the system’. ⁹⁹ Although acknowledging that not all violations will be equally culpable, Merry and Brookbanks contend that violations will always be blameworthy ‘because violations involve choice’. ¹⁰⁰ However, an assessment of the clinician’s actions should not confuse what ‘could reasonably be expected to have been done’ with ‘what ought to have been done’. ¹⁰¹ A violation may indeed be reprehensible depending on the reason for it; a lazy shortcut or a well-reasoned aberration. However, the violation must be considered in the context of the prevailing circumstances the defendant was faced when it occurred.

Can Negligence Be Culpable?

Negligence implies ignorance or inadvertence, and a negligent doctor should not be criminally liable for a momentary lapse of concentration or inadvertence; an error of judgment. However, the imposition of criminal liability may be apposite for a doctor who has a wilful disregard for the safety of others, a doctor guilty of a violation. But, if negligent conduct is culpable, and labelled a violation, three factors must be present.

(i) Awareness

Taking these elements, awareness, choice and control, and additionally importing principles from public law, the next section outlines a new model for gross negligence manslaughter, which better defines the boundary between criminal negligence and tortious negligence. This sliding scale of negligence will delineate more clearly the defendant’s wrongdoing and assessment of culpability.

The Starting Point—Simple Negligence and the Bolam Test

In civil and criminal law it is accepted that a doctor owes a duty of care to their patient and in both a criminal and clinical negligence claim the claimant must establish a breach of that duty. The standard of care in civil law in a clinical negligence case is governed by the Bolam test. ¹¹³ A doctor must attain

…the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. (per McNair J) ¹¹⁴

The threshold for establishing clinical negligence is a difficult one for a claimant to prove, made even more so as there is likely to be more than one form of accepted practice. This point was explicitly recognised by McNair J, who stressed that the court should not find the defendant negligent simply on the basis there was ‘a body of opinion that takes the contrary view’. ¹¹⁵

The Bolam test has been the subject of extensive criticism. It has been viewed as the epitome of self-regulation, at its worst regarded as allowing the negligent doctor to escape liability by simply calling on other doctors to endorse the lowest common denominator in clinical practice. ¹¹⁶ Bolam seemingly permitted the courts to adopt a descriptive approach to the expert evidence, if there were other doctors, that might have behaved as the defendant did, then the defendant will have acted with ordinary care and will not be in breach of duty. The role of the court became solely to determine the existence of an accepted practice that would endorse the defendant’s actions. If such a body of evidence existed, the defendant would not be negligent. ¹¹⁷ Norrie argued that what was required was a normative interpretation of Bolam and the expert evidence and that the courts should be seen to engage with the expert evidence. ¹¹⁸ A normative approach asks ‘is this what doctors should do’ specifically what should be done in the circumstances rather than ascertaining, is this what doctors ordinarily do. Norrie maintained that McNair’s reference to the ‘reasonable’ doctor permitted the court to take into account all of the relevant facts and circumstances of the particular case. ¹¹⁹ However, the aftermath of Bolam was characterised by innate reluctance by the judiciary to question medical opinion. ¹²⁰

Falling short of the Bolam test rarely led to a finding of criminality, the negligent doctor who failed to comply with accepted practice was not usually the doctor who also exhibited such ‘a gross dereliction of care’. ¹²¹ Negligence simply describes the harm resulting from a breach of duty with no element of culpability implied. The Bolam test is only the first point on the sliding scale of negligence.

Logic and Lacunas—Moving Along the Scale

In the clinical negligence case Bolitho v City of Hackney HA, the defendant doctor negligently failed to attend Patrick Bolitho who subsequently suffered respiratory arrest and later died. ¹²² Commenting on the Bolam test and the use of expert evidence, Lord Browne-Wilkinson said the proposed medical opinion must have a logical basis and that,

…, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter. ¹²³

Lord Browne-Wilkinson acknowledged that it would only be in a ‘rare case’ that the expert opinion would not be ‘capable of withstanding logical analysis’, and,

It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed. ¹²⁴

Logic is regarded as a certain way of thinking, a deduction/inference, that is, if ‘X then Y’. A logical decision is one that is reasonable and founded on good judgment. Whether an individual’s reasoning is logical is not the same question as whether their decision was reasonable in all the circumstances, a value judgment. The majority of clinical negligence cases that reach the civil courts involve a normative appraisal of the evidence in which the courts decide if the approach adopted was ‘reasonable in the circumstances’, not if it was the only right answer. The use of logic in Bolitho was arguably the wrong call as what was required was a detailed analysis of the risks and benefits of intubating. Reading the judgment of Lord Browne-Wilkinson it is not evident in Bolitho that any such analysis occurred,

Intubation is not routine, risk-free process…it cannot be suggested that it was illogical for Dr Dinwiddie, a most distinguished expert, to favour running what, in his view, was a small risk of total respiratory collapse rather than submit [the child] to the invasive procedure of intubation. ¹²⁵

Notwithstanding the questionable use of the term ‘logic’ Bolitho has been said to put a gloss ¹²⁶ on the Bolam test, the medical practice that the defendant doctor relies on must not only be Bolam compatible but Bolitho compliant; it must be both reasonable and logical. Perhaps, as Lord Browne-Wilkinson stated, only in those very rare circumstances ¹²⁷ where it is glaringly obvious that the defendant should have adopted another course of action that the courts will intervene but nonetheless the courts can and have intervened when the accepted practice is adjudged as logically indefensible. ¹²⁸

Could logic be utilised in a new test for gross negligence manslaughter? The majority of clinical negligence cases that are ‘logically indefensible’ are likely to be settled simply because the internal consistency of the expert evidence does not add up. However, is an illogical doctor, a doctor whose actions ‘cannot logically be supported at all’, ¹²⁹ so far removed from the grossly negligent doctor? A grossly negligent doctor is considered to have behaved illogically where there has been blatant disregard for accepted practice or adherence to an outdated practice and they have failed to recognise the risks in their approach could cause the death of a patient.

Lodge writes that ‘in the criminal context negligence requires unreasonable risk-taking’. ¹³⁰ Substitute ‘illogical’ for ‘unreasonable’; would that produce a test that avoids needing to determine the ‘grossness’ of the negligence?

In his analysis of a logical practice, Lord Browne-Wilkinson referred to the judgment of Sachs LJ in Hucks v Cole as being one of those rare cases where the accepted practice was illogical.

When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna…If the court finds…there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. ¹³¹

In Hucks, the doctor failed to prescribe penicillin to a patient following childbirth resulting in her contracting puerperal fever. There was no logical explanation for not electing to prescribe a drug that was inexpensive, widely available and could minimise if not eliminate a known risk. A scenario where there is a known risk X therefore follow step Y to minimise that risk. In Bolitho, the courts in judging the defendant not negligent for failing to intubate seemed to set the bar very high for a finding of illogical conduct. Previously, in Bolitho, in the Court of Appeal, LJ Dillon referring to the judgment of Sachs LJ in Hucks, stated that the courts should only reject medical opinion,

if the court, fully conscious of its own lack of medical knowledge and clinical experience, was none the less clearly satisfied that the views of that group of doctors were Wednesbury unreasonable, i.e. views such as no reasonable body of doctors could have held. ¹³²

The concept of Wednesbury unreasonableness has its origins in administrative law. ¹³³ In keeping with Teff, ¹³⁴ the Wednesbury threshold is not an apposite test for a clinical negligence claim, but it may be part of the solution to the difficulties with the current test of gross negligence.

Wednesbury—When No One Would Have Acted as the Defendant Did

One of the grounds for an application for judicial review is that the decision made by a public authority was irrational. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation, ¹³⁵ a decision was labelled irrational if ‘[i]t is so unreasonable that it might almost be described as being done in bad faith’, and that to prove a decision as irrational ‘would require something overwhelming’. ¹³⁶ In such an instance, the court could legitimately interfere.

The concept of bad faith is more often associated with claims in contract and commercial dealings, although medical law has also recognised its usefulness in assessing the integrity of a doctor’s decision. ¹³⁷ A doctor who either intentionally or maliciously adopts a course of action resulting in the death of their patient has clearly acted in bad faith. Such a doctor is negligent, additionally culpable and therefore a criminal. Similarly, the doctor who knowingly disregards a risk and has embarked on a path that has no logical basis or explanation, or follows a course of action that ‘no sensible person who has applied his mind to the question to be decided could have arrived at it’ ¹³⁸ ; such a doctor’s actions are illogical, grossly unreasonable and potentially criminal.

The Wednesbury test demands evidence that is overwhelming. Lord Diplock describes the court power to review a decision ‘which is so outrageous in its defiance of logic or accepted moral standards’ that it would be endorsed by no one. ¹³⁹ A criticism of the Wednesbury test, as applied in an administrative law context, is that the evidential threshold is impossibly high. However, given the consequences of labelling a doctor a criminal, the Wednesbury test in a revised gross negligence manslaughter test could be apposite. This further notch along the sliding scale, (Wednesbury) unreasonableness may appease those who would contend a test based on logic is insufficiently rigorous.

The following paragraph reruns a variation of the facts of Bolitho to demonstrate how this new test might work in a case of gross negligence manslaughter.

(i) Bolitho adjusted

The doctor in this scenario is aware of the risks of grave danger but fails to make any attempt to avoid that risk, the risk is embraced, it is knowingly taken. The doctor’s actions are illogical—in this situation, there can only be one answer—an x therefore y deduction. This doctor is operating in a lacuna, the doctor has chosen to knowingly take a risk which poses grave danger to the patient. ¹⁴¹ This is a violation, it is a deliberate choice to deviate from accepted practice. ¹⁴² A risk that can, and should, be easily avoided. The doctor has control over the situation, there are no extraneous factors preventing this doctor from electing to follow a different course of action. By returning to the clinic this doctor has reached a decision which is grossly unreasonable, a decision that no reasonable doctor would support ‘in all the circumstances’. ¹⁴³ The doctor’s actions were so bad (substitute illogical or grossly unreasonable) as to justify the imposition of criminal liability. Our hypothetical doctor may be guilty of gross negligence manslaughter.

Ashworth previously suggested that tests founded in negligence may be appropriate in establishing criminal liability where the harm is great, the risk of it occurring is obvious and where the defendant has both the duty and the capacity to avoid the risk. ¹⁴⁴ This is true, however, the doctor must be aware of the risk and have control over whether to make the obvious and logical choice to avoid that risk. In those circumstances, what might be deemed foolhardy, risky, dicey or whatever epithet favoured, is conduct that is not only illogical and unreasonable but may also be criminal. What those circumstances are is the focus of the next section, together with a further exploration of the illogical and unreasonableness test.

Adomako and Bolitho Revisited and Introducing Barnett—The Grossly Illogical/Unreasonable Doctor in all the Circumstances

The previous sections outlined the facts of Adomako and Bolitho. Barnett, however, is a new addition to the discussion. In Barnett v Chelsea & Kensington Hospital Management Committee, ¹⁴⁵ three nightwatchmen presented at a hospital casualty department complaining that they had been vomiting for three hours after drinking tea. The nurse on duty reported their complaints by telephone to the duty medical casualty officer, who, without seeing the men, instructed the nurse to inform the men to go home to bed and see their own doctor. Five hours later, the men were dead from arsenic poisoning, later sourced to their tea. A widow of one of the men unsuccessfully claimed that the casualty officer was negligent for failing to attend her husband. ¹⁴⁶ Factually, Barnett and Bolitho are similar in that both doctors were negligent for failing to attend their respective patients. Similarly, Adomako negligently failed to monitor his patient. In all three cases, it is contended that the defendants’ breach of duty was illogical, grossly unreasonable and potentially causative of the death of their patient. Barnett, Bolitho and Adomako will now be used to illustrate the blurring of civil and criminal liability and the feasibility of a sliding scale approach to criminality. The framework proposed by Brazier and Alghrani proves helpful in this regard. ¹⁴⁷

First, did the doctor owe a duty of care to the patient?

In Bolitho, the failure of Dr Horn, the Senior Paediatric Registrar, to attend Patrick Bolitho on not just one but on two occasions was negligent. Being aware of Patrick’s medical history of a heart condition and croup, and that Patrick ‘was having difficulty in breathing and was very white’, ¹⁵² Dr Horn chose not to attend. However, does this mean that any failure to attend a patient is negligent with the potential for criminal liability? In Bolitho, Dr Horn delegated this duty to Dr Rodgers. Disastrously, she too failed to appear, contending that she failed to receive any instruction. Although Dr Rodgers may have been negligent for failing to attend Patrick Bolitho, she was unaware of the impending crisis, she was unaware of the risks of non-attendance, there was no choice made to disregard the risk, she was not in control of the situation and consequently Dr Rodgers cannot be criminally liable. Returning to the words of Lord Mackay in Adomako, any non-attendance must be viewed in the context of ‘all the circumstances’, on the spectrum of inadvertence and only if the obligatory ingredient of culpability is evident will negligence stray into the domain of the criminal law. ¹⁵³

The doctor who was aware and the doctor who should have been aware. Illogicality/unreasonableness a catch all proviso?

Agreeing with these sentiments, Nield J commented, ‘[w]ithout doubt the casualty officer should have seen and examined the deceased. His failure to do either cannot be described as an excusable error as has been submitted. It was negligence’. ¹⁵⁶

The casualty doctor’s non-attendance was negligent, illogical and Wednesbury unreasonable. Ignorance should not be a defence for the blameworthy doctor unless such ignorance is both logical and defensible. ¹⁵⁷

When two become one—Simple, gross and all the circumstances

A test of illogicality/Wednesbury unreasonableness removes the circularity of the present test for gross negligence manslaughter. A sliding scale from simple to illogical/Wednesbury unreasonable is a linear approach with clearer boundaries. Only when the illogical/Wednesbury unreasonable marker is met, is culpability considered. The illogical test is an objective test focused on an assessment of risks. The Wednesbury unreasonable test is even more clear-cut, the offender’s actions are endorsed by no one. Applying such a test followed by an evaluation of the degree of blame would result in the acquittal of Prentice and Sullman and, probably, Dr Bawa-Garba but the conviction of Dr Adomako.

The preceding paragraphs explored what conduct should warrant the imposition of criminal liability and advocated a new approach. Accepting that the criminal law has a role to play in the regulation of the medical profession, is there a case for widening the scope of liability to include those actions causing harm falling short of death?

The Guidelines

The guidelines came into force on 1 November 2018 and apply retrospectively. As Fidderman notes, this is the first occasion that the Council has issued a detailed guideline for manslaughter committed by an individual. ¹⁸⁹

To begin, the Council has included a general statement in relation to culpability, ‘[t]he court should avoid an overly mechanistic application of these factors’. ¹⁹⁰

Sensibly, this caveat echoes the Lord Mackay approach espoused in Adomako of reflecting on ‘all the circumstances’ of the offence. ¹⁹¹ The overall intent of the guidelines to embrace flexibility is to be welcomed.

The penalty range runs from 1 year to 18 years and as Wasik observes ‘reflect the wide, factual circumstances and range of culpability which can apply in an offence based on a breach of a standard of care rather than on traditional mens rea’. ¹⁹² There are four categories of culpability and one level of harm. At the most serious end of the spectrum, ‘the offender showed a blatant disregard for a very high risk of death resulting from the negligent conduct’. ¹⁹³ This spectrum embraces factors indicating a lower level of culpability which include the offender’s actions identified as a ‘lapse’ in ‘otherwise satisfactory standard of care’ and the offender being in a ‘lesser or subordinate role if acting with others in the offending’. ¹⁹⁴ The increased flexibility in approach to sentencing is further illustrated by the addition of new factors reducing the seriousness of the offence or alternatively being considered as mitigating circumstances. Although not healthcare-specific, the inclusion of new factors is a direct consequence of meetings between the Council and medical professionals. Factors ‘beyond the offender’s control’ may be pleaded in mitigation. These include:

(i) the offender lacked the necessary expertise, equipment, support or training which contributed to the negligent conduct;

(ii) the offender was subject to stress or pressure (including from competing or complex demands) which related to and contributed to the negligent conduct;

(iii) the negligent conduct occurred in circumstances where there was reduced scope for exercising usual care and competence; and

(iv) the negligent conduct was compounded by the actions or omissions of others. ¹⁹⁵

Plainly, the courts are keen to move away from the punitive approach adopted in R v Garg ¹⁹⁶ and eager to utilise a greater variation in sentencing.

Solution or Stop-Gap? Sentencing, Gross Negligence Manslaughter and the Sliding Scale

The guidelines seem to have gone some way to addressing the criticisms of Quirk who argued that the sentencing framework should reflect the ‘spectrum of culpability and the particular circumstances in which doctors’ work’. ¹⁹⁷ The approach taken in the revised sentencing guidelines effectively mirrors the ‘sliding scale’ of negligence; it acknowledges, expressly, that the defendant’s culpability is heavily influenced by all the circumstances surrounding the offence. Implicitly, the guidelines revisit mens rea as a necessary ingredient for the offence. Judge LJ previously stated that the grossness of the negligence provides the necessary mens rea for the offence and in Attorney-General Ref (No 2) the court stated that the defendant’s state of mind need not be a consideration. ¹⁹⁸ The Sentencing Council have, perhaps, tacitly disregarded this approach. The most serious level of culpability echoes the proposed spectrum of negligence this would catch the doctor who carried on regardless, the clinician who ignored the red flag irrespective of the consequence, had no excuse and displayed a high level of culpability. This is recklessness, which has never been doubted as a highly culpable state of mind. The detailed examination of culpability in the sentencing guidelines ought, however, to also be evident at the prosecution stage.

The addition of new mitigating factors also partially addresses the criticisms made by Dyer in relation to R v Sullman and Prentice who observed,

Bringing the full weight of the criminal law to bear on two fledgling doctors will do little to remedy a system which lets juniors loose on patients with too little training, too little support, and too little sleep. ¹⁹⁹

Recognition in the guidelines that clinicians work often in highly stressed and under-resourced environments is long overdue and a necessary and timely intervention. Yet the addition of these new mitigating factors is necessary only as a result of the failure of the present legal test to acknowledge ‘all the circumstances’ of the crime. Patently, if the legal test is reformed in the guise of the spectrum of negligence, the overworked, understaffed, ill-trained clinician would be unlikely to fall within the remit of the criminal law because of the absence of the apposite level of culpability. However, acknowledging that a reformed legal test is some way off, in the interim the guidelines have taken a positive step and have coherently mapped out the scale of culpability. ²⁰⁰

It is disappointing, however, that the guidelines apply only to ‘harm of the utmost seriousness’ defined as the loss of life. ²⁰¹ It is long overdue that the moral luck loophole is firmly closed, and the degree of negligence and blame should be the decisive factors in determining the level of criminality. The importance of the consequences of the clinician’s conduct is undiminished by accepting that the degree of blame is of greater significance to the level of criminality. Quirk commented on the previous sentencing regime, ‘the court has focused too much on the harm rather than the culpability’. ²⁰² The new guidelines have partially redressed that inequality but to achieve a full equilibrium conduct resulting in serious harm should be accommodated.