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MEDICINE, MISTAKES AND MANSLAUGHTER: A CRIMINAL COMBINATION?

Published online by Cambridge University Press:  11 March 2010

Oliver Quick
Affiliation:
Senior Lecturer in Law, University of Bristol.
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Abstract

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Articles
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Copyright © Cambridge Law Journal and Contributors 2010

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References

1 For example, supplying intoxicating substances to the under aged (Intoxicating Substance (Supply) Act 1985, s. 1(1)); causing death by dangerous driving (Road Traffic Act 1988, s. 1); insider trading (Criminal Justice Act 1993, s. 52(2)(a)); harassment (Protection from Harassment Act 1997, ss. 1(1) and 2(1)); providing money or property for the purposes of terrorism (Terrorism Act 2000, ss. 15–18); money laundering (Proceeds of Crime Act 2002, s. 330(2)(b)); and causing or allowing the death of a child or vulnerable adult (Domestic Violence, Crime and Victims Act 2004, s. 5).

2 See J.C. Smith, “The Element of Chance in Criminal Liability” (1971) Crim. L.R. 63, and T. Nagel, Mortal Questions (London 1991).

3 These statistics are based on searching newspaper archives. For further details see R. Ferner and S. McDowell “Doctors charged with manslaughter in the course of medical practice, 1795–2005: a literature review” (2006) 99 Journal of the Royal Society of Medicine 309. It is hoped that more detailed data about suspected cases will emerge from an ongoing AHRC funded project entitled “The Impact of the Criminal Process on Healthcare Ethics and Practice”, see http://www.law.manchester.ac.U.K./research/hccriminalprocess (accessed 8 January 2010).

4 O.L. Quick, “Prosecuting ‘Gross’ Medical Negligence: Manslaughter, Discretion and the Crown Prosecution Service” (2006) 33 Journal of Law and Society 421. This article draws on some of the findings from this paper.

5 J.R. Spencer, “The Drafting of Criminal Justice Legislation – Need it be so Impenetrable?” [2008] C.L.J. 585.

6 D. Husak, Overcriminalization: The Limits of the Criminal Law (Oxford 2008) at p. 26.

7 See D. Brahams, “Death of a remand prisoner” (1992) 340 The Lancet 1462.

8 “Doctor cleared” The Times, 19 May 2004, p. 4.

9 Not, as one translation of this form of medieval legal French said: “condemned” to God! I am grateful to Mr Ian Barker for this information.

10 For example, R. v. Williamson (1807) 3 C. & P. 635; R. v. Spencer (1867) 10 Cox C.C., 525; R. v. Noakes (1866) 4 F. & F. 921; R. v. Crick (1859) 1 F. & F. 519.

11 R. v. Bateman (1925) 19 Cr. App. R. 8.

12 Ibid., at p. 11 per Lord Justice Hewart (emphasis added).

13 R. v. Adomako [1995] 1 A.C. 171.

14 Ibid., pp. 86–87 (emphasis added).

15 For example, see S. Gardner, “Manslaughter by Gross Negligence” (1995) 111 L.Q.R. 22, G. Virgo, “Reconstructing Manslaughter on Defective Foundations” [1995] C.L.J. 14.

16 R. v. Misra and Srivastava [2005] 1 Cr. App. R. 21.

17 Ibid., at para. 32.

18 Of course vagueness has been defended as a necessary feature of law, for example see T. Endicott, Vagueness in Law (Oxford 2001).

19 See J. Horder, “Gross Negligence and Criminal Culpability” (1997) 47 U. Toronto L.J. 495.

20 See S.W.A. Dekker, Just Culture: Balancing Safety and Accountability (Ashgate 2007), ch. 7.

21 R. (on the application of Purdy) v. D.P.P. [2009] 3 W.L.R. 403.

22 Quoted in F.A. Salamone, The Culture of Jazz: Jazz as Critical Culture (Lanham, Maryland 2009), at p. 92.

23 Ibid., note 16 above, at para. 62.

24 A. Ashworth, Principles of Criminal Law (Oxford 2009), p. 279.

25 Leading commentators are agreed on this: see Ashworth ibid., D. Ormerod, Smith and Hogan, Criminal Law 12th ed. (Oxford 2008), p. 531, and M. Allen, Textbook on Criminal Law, 10th ed. (Oxford 2009), p. 350.

26 Ibid., note 16 above, at para. 64 (emphasis added).

27 J. Hall, “Negligence and the General Problem of Criminal Responsibility” (1972) 81 Yale L.J. 912 at p. 952.

28 H.L.A. Hart, “Negligence, Mens Rea and Criminal Responsibility” in Punishment and Responsibility: Essays in the Philosophy of Law (Oxford 1968), pp. 136–157.

29 G. Williams, Textbook of Criminal Law, 2nd ed. (London 1983), p. 91.

30 A. Ashworth, note 24 above, at p. 187–188.

31 See also, H. Morris, “The Decline of Guilt” (1988) 99 Ethics 62.

32 A. Norrie, Crime, Reason and History (London 2001), p. 238.

33 For a fuller analysis see O.L. Quick, note 4 above.

34 Although this was denied by Dr. Adomako, see D. Brahams, “Two Locum Anaesthetists Convicted of Manslaughter” (1990) 45 Anaesthesia 981.

35 Dr. Ramnath claimed that this was a planned career move as opposed to running from the scene of a crime, see “Doctor Killed Patient with Injection” The Independent 13 January 2009.

36 R. A. Duff, “Choice, Character and Criminal Liability” (1993) 12 Law and Philosophy pp. 345–383, at p. 380. Duff has further developed this virtue theory of criminal liability elsewhere: “Virtue, Vice and Criminal Liability: Do we want an Aristotelian Criminal Law?” (2002) 6 Buffalo Criminal Law Review 147 and “The Virtues and Vices of Virtue Jurisprudence” in T.D.J. Chappell (ed.) Values and Virtues: Aristotelianism in Contemporary Ethics (Oxford 2006), pp. 90–104.

37 V. Tadros, Criminal Responsibility (Oxford 2005).

38 N. Lacey, “Space, time and Function: Intersecting Principles of Responsibility across the Terrain of Criminal Justice” (2007) 1 Criminal Law and Philosophy 233 at p. 247, and see also “The Resurgence of ‘Character’? Responsibility in the Context of Criminalisation” in A. Duff and S. Green (eds.), Philosophical Foundations of Criminal Law (Oxford forthcoming). In terms of evidence law, the rules of admissibility regarding bad character have been broadened by the Criminal Justice Act 2003, ss. 98–101.

39 Duff (1993), note 36 above, at p. 368.

40 See L. Cooke, S. Halford and P. Leonard, Racism in the Medical Profession: the Experience of U.K. Graduates (B.M.A. 2003).

41 For which the Law Commission has expressed its criticism: see Law Commission “A New Homicide Act for England and Wales” (Consultation Paper 177; 2005), paras 6.37 and 6.47.

42 Law Commission, “The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales: A New Approach to the Determination of Evidentiary Reliability” (Consultation Paper 190; 2009).

43 C.A.G. Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Oxford 1994) at p. 119.

44 Albeit a rule which is “honoured most often in the breach” see M. Redmayne, Expert Evidence and Criminal Justice (Oxford 2001), p. 168.

45 The so-called “common knowledge” rule from the leading case of R. v. Turner [1975] 1 All E.R. 70.

46 T. Ward, “English Law's Epistemology of Expert Testimony” (2006) 33 Journal of Law and Society 572.

47 The risk of the character and charisma of experts unduly influencing criminal trials was noted in “Forensic Science on Trial”, House of Commons Science and Technology Committee, Seventh Report of Session 2004–05, (HC 96-I; 2005), p. 64.

48 T. Ward, “Usurping the Role of the Jury? Expert Evidence and Witness Credibility in English Criminal Trials” (2009) 13 Int. J. Evidence & Proof 83.

49 I will discuss the role of experts in medical manslaughter cases in a forthcoming article.

50 Road Safety Act 2006, s. 20 (causing death by careless driving).

51 Domestic Violence, Crime and Victims Act 2004, s. 5 (causing or allowing the death of a child or vulnerable adult).

52 L.L. Leape, “Error in Medicine” (1994) 272 Journal of the American Medical Association 1851.

53 A. Merry and A. McCall Smith, Errors, Medicine and the Law (Cambridge 2001).

54 Editorial, “A Research Agenda for Patient Safety” (2006) 18 International Journal for Quality in Health Care 1. Though note the recent publication of personal accounts by doctors confronting their own errors and discussing ways to improve safety: see, F. Huyler, The Blood of Strangers: True Stories from the Emergency Room (London 1999); J. Groopman, How Doctors Think (London 2007); and the prolific A. Gawande, Complications: A Surgeon's Notes on an Imperfect Science (London 2003), Better: A Surgeon's Notes on Performance (London 2007) and The Checklist Manifesto: How to Get Things Right (London 2009).

55 For fuller consideration of the case for a specific offence in the medical context, as well as many others, see C.M.V. Clarkson and S. Cunningham (eds.), Criminal Liability for Non-Aggressive Death (Ashgate 2008).

56 S. Kadish, “The Crisis of Overcriminalization” (1967) 374 The Annals of the American Academy of Political and Social Science 157.

57 See M. Brazier and A. Alghrani, “Fatal Medical Malpractice and Criminal Liability” (2009) 25 Professional Negligence 51.

58 And which has not, as Ormerod correctly notes, been subsumed within gross negligence, see note 25 above, at p. 533.

59 J. Horder, note 19 above.

60 See note 13 above at p. 188.

61 Note 16 above at para. 56.

62 Law Commission, “A New Homicide Act for England and Wales” (Consultation Paper 177; 2005), p. 90, para 3.182.

63 See Law Commission, “Murder, Manslaughter and Infanticide” (Law. Com. No. 304; 2006). Its recommendations in relation to partial defences have culminated in Coroners and Justice Act 2009, ss. 52–56.

64 Ibid., at para. 2.165 and paras. 3.54–3.57.

65 Law Commission, “Legislating the Criminal Code: Involuntary Manslaughter” (Law. Com. No. 237; 1996).

66 The best explanation of the difference between the two is still that of Glanville Williams, note 29 above, at pp. 98–100.

67 R. v G. and Another [2004] 1 A.C. 1034.

68 See clause 1 of the Commission's Involuntary Homicide Bill, in Appendix A of note 64 above.

69 G. Williams, note 29 above, at p. 98.

70 R. v. Caldwell [1982] A.C. 341.

71 “Doctor who killed patient on operating table escapes jail”, The Independent, 24 June 2004, p. 19.

72 (2004) 328 British Medical Journal 726.

73 (2009) 338 British Medical Journal 545.

74 See note 29 above at p. 100.

75 Note 66 above.

76 G. Williams, “Recklessness Redefined” [1981] C.L.J. 252.

77 A. Duff, Intention, Agency and Criminal Liability (Oxford 1990), ch. 7.

78 V. Tadros, “Recklessness and the Duty to Take Care” in S. Shute and A.P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part (Oxford 2002), 227 at p. 258.

79 Note 66 above at p. 1063.