It is a real honour to be asked to deliver this lecture at the University of Cambridge. Though I must admit, when I received Professor Spencer‟s kind invitation, there were a few butterflies in my stomach. And my nerves did not settle down on discovering the name of the benefactor for this lecture series: the distinguished Baron Dr Cornelius Ver Heyden De Lancey - a remarkably talented man with qualifications in dentistry, medicine and law. I hope that the subject of this lecture – „medicine, mistakes, and manslaughter‟ would have been of interest to the Baron, and will be of interest to your good selves. Thank you for coming.
Medical mistakes come in many shapes and sizes, but criminal law adopts a one size fits all approach – which, to my mind, can be a bad fit. For individuals at the sharp end, the stakes are high and stark: manslaughter prosecution or no action. As we all know, involuntary manslaughter is an amorphous category covering a wide range of unintentional (but culpable) killings. Medical cases are prosecuted with reference to the „catch all‟ concept of „gross negligence‟. Although not unique as an example of objective criminal liability – in fact, crimes of negligence are on the increase - its position near the apex of serious offences and the absence of a lesser or inchoate crime renders this an unsatisfactory „all or nothing‟ scenario, often hinging on moral luck and prosecutorial (and expert witness) performance. Although relatively rare, such prosecutions have risen markedly over the past twenty years. To the best of my knowledge, since 1925, 65 health professionals have been charged with medical manslaughter – with over 50 of these since 1990. Understandably, this has caused much anxiety for healthcare professionals and invited academic inquiry.
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This lecture will consider how criminal law should deal with fatal medical error. I will attempt to defend the following thesis: that the current test for liability (gross negligence) is unclear, unprincipled, often unfair and ought to be abolished. I will argue that subjective reckless manslaughter is the proper place to set the bar for liability. This approach is quite old fashioned. A more modern approach would see the creation of a specific offence for the health care context – perhaps „death by dangerous doctoring‟ - but I am against this option. We are living in an era of quite obscene over-criminalization. As Professor Spencer has recently remarked in the Cambridge Law Journal, the government is (sadly) big on „binge law making‟. We should resist the temptation to gorge around gross negligence by creating new special offences here. We really do not need a Dangerous Docs Act! As Douglas Husak points out in his recent book „Over-criminalisation‟ prosecutorial discretion offers the only way of slimming down on criminal liability. He notes that (and continuing our food theme!) statutes are in effect menus from which prosecutors choose. In these circumstances (and perhaps these alone) I would prefer a more limited choice set menu as opposed to a more lavish a la carte – more Little Chef than Heston Blumenthal perhaps!
A criminal combination?
Before getting into detail, one question can be quickly dealt with – that is whether criminal law should be involved at all in dealing with medical error? Not even the staunchest sympathiser of the medical profession would call for a blanket ban on criminalisation Or if so, they would struggle to make a convincing case; some events will always be beyond the pale and warrant a criminal response. The tough task is to settle on a morally meaningful and fair framework for culpability. Given that this involves a wide range of conduct - from the blatantly reckless to the momentary slip – this is far from straightforward. In 1952 a Dr Gray was convicted for causing the death of his patient after getting high by sniffing anaesthetic gases prior to an operation. This is quite different from the case of another anaesthetist, a Dr Falconer, prosecuted in 2006 for a momentary slip – he fatally injected oxygen into the wrong tube (going into the vein rather than the abdomen) – of the baby being operated on. They are conceptually distinct: a clear violation versus a momentary slip. They are morally quite different. But legally speaking, both are swept up by the broad (and perhaps brutal) brush of gross negligence. I think this is wrong. But we don‟t need a new broom to sweep
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clean – no new offences - but rather, we need to rediscover recklessness, which should be the bottom line.
‘Medical Manslaughter: some history’.
In terms of a brief history, although such prosecutions have increased lately, they go back a long way. The first known prosecution (well, the first I have been able to find) occurred in 1329 in Newcastle where a practitioner was „commended‟ to God. Not, as one translation of this form of medieval legal French said: „condemned‟ to God! Quite different! I am grateful to Mr Ian Barker for this information. „Gross‟ negligence emerged in the nineteenth century, where we find the first cluster of cases. Although such cases are rare, their tendency to challenge the very basis of liability has often led them to the appeal courts and into law reports as our leading authorities on manslaughter.
The first of these concerned the conviction of a Dr Bateman for his treatment of his patient during the (somewhat difficult) delivery of her child. The baby was in the breech position, and in performing a manual „version‟ (to move the baby to the head down position), he mistakenly removed part of her uterus and caused other internal damage resulting in death.
In allowing the appeal and quashing the conviction, the Court of Criminal Appeal formulated the following test of liability: (familiar to you all)
In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as „„culpable‟‟, „„criminal‟‟, „„gross‟‟, „„wicked‟‟, „„clear‟‟, „„complete‟‟. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.
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So criminal negligence is more than normal negligence - but how much more, we don‟t really know…
In 1994 this was endorsed by the House of Lords in R v Adomako. Here, an anaesthetist lost his appeal against conviction after fatally failing to spot a disconnected oxygen tube during a routine eye operation. Lord Mackay of Clashfern refined the Bateman test:
In my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. 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.
This formulation has been criticised, - it amounts to the following circular test: it is a crime if the jury think it ought to be a crime. Unsurprisingly perhaps, the next case to end up in the Appeal Courts (R v Misra, Srivistava) saw gross negligence manslaughter assessed for its compatibility with two human rights (of the doctors): namely the Art 6 right to a „fair trial‟ and the Art 7 prohibitions on „retrospective criminalisation‟.
Amit Misra and Rajeev Srivastava were senior house officers at Southampton General Hospital. They mismanaged the care of a 31 year old man who developed toxic shock syndrome after a routine knee operation. This is quite a rare complication (unlike MRSA for example) with a fairly low mortality rate (about 5%). Specifically, they responded inadequately to obvious signs of infection, such as raised temperature and pulse rate, and failed to chase up blood test results that would have prompted the antibiotic care which would probably have averted disaster. The jury convicted and their appeals were rejected.
So to the human rights arguments, how were these expressed?
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Article 7 of the European Convention on Human Rights prohibits retrospective criminalisation:
No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
In essence, the doctors argued that gross negligence is so vague as to fall foul of the certainty requirements of Art 7 – that is, the principle of legality. Put in rather crude and unlikely terms their argument boiled down to this: had Dr Misra, perhaps in a state of panic, picked up the phone and asked his solicitor „listen I‟m losing the plot here…could you tell me, what is gross negligence?‟ the simple and succinct response might have been „well, it is gross and criminal negligence if the jury conclude it ought to be‟. Not that useful then. At least the legal advice wouldn‟t amount to much by way of chargeable hours!
The Court of Appeal acknowledged the force of this argument. They recalled Francis Bacon‟s famous linkage of justice and legal certainty from the 17th Century:
“For if the trumpet give an uncertain sound, who shall prepare himself to the battle? So if the law give an uncertain sound, who shall prepare to obey it? It ought therefore to warn before it strikes ... Let there be no authority to shed blood; nor let sentence be pronounced in any court upon cases, except according to a known and certain law.”
This was dismissed on the basis that Art 7 demanded sufficient, rather than absolute, certainty and that the degree of vagueness here was acceptable. Of course, numerous legal philosophers have defended vagueness as a necessary feature of law. Timothy Endicott‟s book „Vagueness in Law‟ from 2001 is a good example. However, returning to Bacon‟s trumpet metaphor, we are still left with a tune with notes which are difficult to read. Now we might not expect (or want) the sort of complex, detailed and intricate music of the great jazz trumpeter Wynton Marsalis (has any one been to one of his gigs? wonderful, but taxing!) – but surely we deserve a bit more clarity from the criminal law? To quote Marsalis on Jazz, he says, „the jazz band works best when participation is shaped by intelligent communication‟. We might wonder whether what we have in terms of gross negligence is sufficiently intelligent (and clear) communication.
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The certainty argument was connected to the argument under Art 6, which requires a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The jurisprudence surrounding Art 6 suggests that a fair hearing implies a reasoned decision, and it was argued (and this was the key point) that as juries here are effectively deciding a question of law (that is, the meaning of the offence – the meaning of gross negligence) and because they do not give reasons for their decisions, this contravened Art 6.
LJ Judge did not agree:
“On proper analysis, therefore, the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant‟s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case.”
In terms of the question of law / question of fact point, Ashworth is right (he usually is!) in noting that this is a „distinction without a difference‟. It is also one without adequate explanation. After all, it is surely plausible that juries do on occasion accept that conduct was grossly negligent but decide against convicting the defendant of manslaughter. In other words (and this is mischievous speculation on my part) they do deal with both the question of fact and the question of law. The relatively low conviction rate of around 30% supports this. With respect then, the Court of Appeal‟s conclusion is more than a little optimistic:
“In our judgment the law is clear…The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter.”
Again, to my mind, this is not particularly clear communication from the law.
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Regrettably, an application for leave to appeal to the House of Lords was rejected. This represents a lost opportunity for a possible (and rare) declaration of incompatibility which would prompt a re-think about this offence. Prosecutors, experts, judges and juries are thus left to grapple with a difficult and circular concept. I‟ll now say some more about why this concept is so troubling both philosophically and in its practical application.
‘Gross Negligence – a criminal charge?’
Negligent criminal liability has long exercised legal philosophers. Jerome Hall was not exaggerating when he called it an „inordinately troublesome‟ area. Hall was responding (and rejecting) Hart‟s celebrated general theory of guilt in which Hart defended criminal negligence as part of a wider capacity theory of responsibility. Hart used the example of the man mending the roof and (without thinking) throws a slate down onto the street below, causing death – what he termed „culpable inadvertence‟. Glanville Williams had subjectivist misgivings: for him, the search for the mental deficiency (for example, forgetfulness) amounted to „an unrewarding exercise in moralism‟. But it retains contemporary support – notably by Andrew Ashworth –and despite its general commitment to subjectivism in criminal law, the Law Commission has given its stamp of approval to gross negligence. (I‟ll return to the commission‟s proposals in this area later on.)
For Jerome Hall, negligent liability loses sight of the notion of blame which is the proper foundation of criminal law. In other words, there is „not enough‟ mens rea – or none at all. Such arguments are based on a principled objection to its unfairness - particularly as it applies to professionals working in high risk (and often unsafe) systems. As Alan Norrie notes: „grossness depends on the way the conduct is socially and morally perceived, rather than its inherent quality‟. However, there has been little empirical examination into the relevant perceptions here. Partly prompted by this, I reviewed all known prosecutions since the start of the Twentieth Century. This involved a statistical analysis looking for any trends and conducting interviews with CPS lawyers at an office (of what was then called) the Special Casework Directorate. To cut to the chase, my conclusion is that the offence is incapable of clear and objective measurement, and it ought to be abolished.
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Now there may be sufficient cause to call for the complete abolition of gross negligence manslaughter. However, the arguments presented here rest on research into its application to medical cases. Further research would be required to analyse its operation in other settings in terms of considering a complete abolition. But I suspect that it can operate equally harshly for the other „professional‟ defendants it mainly applies to: transport drivers, electricians, architects, school teachers, and prison officers The option of exempting healthcare professionals from gross negligence liability is open to the criticism that it offers unfair protection. Whilst perhaps a special case can be made for health care, any exemption would ultimately be unacceptable in equality of law terms. In reality then there are two choices: downgrade and prosecute more with a special homicide offence for those who kill whilst performing socially vital functions, or upgrade and narrow the focus on „reckless killing‟ as the business of criminal law. As you‟ll see in a moment, I prefer the latter option. But for now, what is so wrong with gross negligence? Analysis of the data presents at least five problems, which I‟ll now consider in turn.
1. Gross negligence means gross vagueness?
Prosecutors struggled to pin down their understanding of the term gross, often initially relying on gut instinct. This was partly because, as one prosecutor revealingly explained: “there‟s no overt criminality there”. The notion of gross negligence was understood with reference to synonyms such as “absolutely disgraceful”, “extra bad”, “totally unacceptable” “pretty abysmal” and “beyond the pale”. In short, there was no obvious or objective system for classifying episodes as gross or not gross.
This response reflects the definitional difficulty. Note the (circular) return to gross at the end…
Well I think it‟s difficult to quantify but you know you are looking at something which needs to be punished by the criminal law. So it‟s got to be something that really stands out as being something that ordinary people wouldn‟t say „Well we
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all make mistakes‟. Ordinary people would say that‟s shocking. You know it‟s got to be gross.
Here is another response reflecting the difficulty of cases on the cusp:
you could have made the decision not to prosecute and it would have been a proper decision, and you could have made the decision to prosecute… we thought it probably was gross negligence but we thought it was close to the borderline…and there were some in our office who said prosecute and some who said don‟t…I wouldn‟t say it was clear cut and we agonised over the decision to prosecute.
Expert evidence will be crucial in such a case, and I‟ll return to this shortly.
2. Character of defendant
The second point is about the character of the defendant. The statistics (albeit small) reveal that a disproportionate number of non-white practitioners feature in prosecutions - over 50%. This is high given that the number of non-white NHS hospital doctors is estimated to be around 25%. This is a particularly troubling finding. It may be understood with reference to a number of sociological explanations, such as the training and language skills of doctors trained overseas, as well as their ability to gain employment and superior supervision in better performing hospitals. This involves some speculation, but it may be that a higher proportion of foreign trained doctors are working in poorly performing hospitals, have received inferior training, possess inadequate language skills, are exercising responsibilities beyond their levels of skill, and are inadequately supervised. The high number may also be related to racist attitudes that creep in to the decisions to complain about and consider investigating individuals in the first place. Sadly, given what we know about the role of race, education, and social background as powerful determinants of individual success, it would be surprising if this was not reflected in the breakdown of such statistics. But it hardly instils confidence in a fair system of law and justice. Coupled with the vagueness of the offence the consequences may be particularly unfair for some.
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3. Geography of Prosecution:
Third, the statistics also suggest a possible „geography of prosecution‟, with unexplained regional variation of the number of prosecutions. There are a greater number of prosecutions in the North, and particularly the North-West of England. Whilst the numbers are small, and may be explained by normal random distributions, it surely can‟t be explained by more negligent fatal error in the North? At least you‟d hope not if you lived there! Rather, could it possibly be a sign of increased prosecutorial confidence in certain regions which have, as it were, „got home‟ on gross negligence, arguably significant given the overall low conviction rate.
4. Expert control?
The fourth finding is about the role of expert evidence. It seems that ultimately the measurement of „gross negligence‟ is effectively handed over to medical experts. Prosecutors, and thus juries, are reliant (perhaps over reliant) on expert evidence. And by and large, this is not the sort of scientific evidence which is currently exercising the Law Commission in its consultation paper on this important issue. After all, gross negligence is a legal term of art, but one which lawyers have devolved to experts, and to their subjective evaluation of whether conduct has crossed the vaguely drawn line of gross negligence. Unsurprisingly perhaps, expert judgment is itself an uncertain and fluctuating process.
The following response is particularly revealing. The prosecutor felt it was grossly negligent, but his two experts disagreed:
“So one was saying yes and one was saying no, so I had to get a third expert and the third expert said well I‟m really not sure. So then we had a conference and all three experts were then saying „Yeah okay, it‟s gross negligence‟. I decided I would follow it up by asking them in writing to confirm their position before we took the case to court given the conflicting evidence before, and when they eventually arrived two of
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them were still saying „no, with further thought it‟s still not gross negligence‟. So yes you‟re right, you know, it‟s not a fixed concept, gross, it is very much subjective.”
Of course expert evidence is required in such cases. But it is inappropriate that it appears to determine rather than just inform the relevant legal questions. It is worth reflecting on the reasons for this. If we consider the lengthy process by which the Criminal Justice System considers these cases it is effectively an exercise in buck-passing: from police to the CPS, from local CPS offices to the Casework Directorate, and from the Directorate to selected experts; and throughout this process, no one is comfortable with the task of measuring „grossness‟. Even seemingly clear cases (such as mistakenly removing the wrong (healthy) kidney – as happened down in Llanelli in 2000) can collapse amidst doubts about culpability and causation that creep in during cross examination at trial.
These are all bad marks against the name of gross negligence. And, as the fifth finding suggests, perhaps it is avoidable given the next insight which is that (in reality) prosecutors are really searching for subjective fault.
5. The search for subjective fault
The following comment from a prosecutor reveals a preference for evidence of subjective recklessness:
I mean, the law says it‟s an objective test, but in reality I can‟t see how we would bring a prosecution without an element of subjective recklessness. I mean even if it‟s really a case where we say it‟s so blindingly obvious that the person must have realised and therefore are subjectively…even if there‟s no direct evidence of subjective recklessness…but it may be so blindingly obvious that anyone must have realised, it‟s simply not believable...
He went on to say that the absence of subjective recklessness is a relevant consideration when assessing the grossness of the negligence. This is symbolically important as indicating prosecutorial unease with gross negligence. It is also of practical significance given the sense that some prosecutors are working to a higher standard of recklessness. Before making the
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case for recklessness, let‟s consider the case for introducing a special homicide offence for healthcare professionals.
Rejecting specificity:
There are two obvious objections to creating context specific crimes: (i) it offends against the principle of minimalism (i.e. there‟s too much law on the prosecutor‟s menu) and (ii) it marginalizes the offence, reduces its stigma and dilutes its deterrent effect. Yet, appreciation of different context has led to specific forms of liability in other settings. If, for example, we accept that vehicular and familial homicide warrant separation from the emotive term manslaughter, why not do the same for deaths caused by careless medical treatment? One option is to create an offence for those who kill by virtue of (mis)performing their work duties. Some argue that a sophisticated, nuanced and fair approach to designing criminal law calls for a context specific approach to responsibility.
So what is the context in healthcare? We know that medical errors are predictable and routine. The statistics are striking: UK studies suggest there are around 850,000 adverse events in NHS hospitals each year, and that 70,000 deaths are partly caused by such error. In the United States, this has been converted into what this would mean in terms of jumbo jet crashes (wait for it: three every two days!!!) Now, this is not a call for airlines to run our hospitals: though the political third way of the public/private partnership might well permit the prospect of a so-called „easyhospital‟.
But of course healthcare is far from easy. And the systematic study of medical error is relatively new - there is no agreed taxonomy. Merry and McCall Smith have addressed the relationship between medical error and blame in conceptualizing these events as errors or violations. Errors are seldom intentional whereas violations are deliberate deviations from accepted rules, norms, or principles. This could also be classified as the difference between doing wrong and wrongdoing. Or, in mens rea terms, between recklessness and negligence. Administering the wrong drug, or the mistake of Dr Falconer, are errors as they are contrary to the intention to give the correct drug or injection. Whereas a decision to continue with surgery contrary to common practice and colleague concern is a violation. Errors are further divided into skill based and technical errors. Skill based errors are slips or lapses, such as the momentary loss of concentration / distraction which are not necessarily manifestations of
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carelessness. Technical errors are connected with variability in competency and performance.
Whilst this is a useful taxonomy of error, there is no evidence that this has gained general acceptance within health care, let alone filtering through to prosecutors. Designing a new criminal offence here must depend on a well understood typology of error, and its relationship with individual blame. Arguably, the study of medical error is at this time insufficiently well developed to support the significant step of creating a new criminal offence. It is for those who argue in favour of liability beneath recklessness to establish that medical cases merit such criminalization, yet persuasive arguments have not been forthcoming.
Calls for new legislative offences should also be based on clear evidence that existing criminal law is failing to deliver on its aims. Unlike domestic + sexual violence or corporate killing, there is no such consensus upon which to build a new specific offence / set of offences for the healthcare setting. As Sanford Kadish would say, we should first consider the consequences of criminalisation. Would it contribute to the goals of improving patient safety? Very unlikely - creating a safety culture depends to a large extent about making people feel safe to talk about and report error – something which is inhibited by the prospect of criminal prosecution – even a morally diluted form of homicide.
‘Reviving recklessness?’
The easiest existing alternative would be to prosecute such cases as subjective reckless manslaughter, which despite its lack of recent common law authority, is uncontentious and well understood. It is true that we are talking about very closely connected concepts. Indeed, the legal line drawing between subjective recklessness and gross negligence has always been blurry; as Jeremey Horder points out, in the 19th Century, judges were less concerned about observing a neat separation between recklessness and negligence, which is a product of contemporary criminal law scholarship and its pursuit of conceptual clarity. Of course, in the
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most part, using these terms interchangeably will not present problems: the conduct in question can properly be classed as both grossly negligent and reckless. But this will not be true of all cases – particularly those on the cusp. It is here that the wider term gross negligence allows prosecutors to take an unfair punt. Having recklessness as the bottom line would offer some protection against this.
Whilst the higher courts have given their blessing to gross negligence, the word „reckless‟ is never far from view. For example in Adomako, Lord Mackay stated that: „it is perfectly open to the trial judge to use the word 'reckless' in its ordinary meaning as part of his exposition of the law if he deems it appropriate‟. This was endorsed in Misra where the Court of Appeal stated that evidence of the defendant‟s state of mind is “not irrelevant” to the issue of gross negligence, in fact, adding that it will often be a “critical factor in the decision”.
It is probably no accident that recklessness lurks in the background. Arguably, this reflects judicial reluctance with leaving liability at the lower level of gross negligence. The law commission has also endorsed this (what we could call the „recklessness as gross negligence‟ position), in saying that:
„recklessness falling short of reckless indifference can really be regarded as a kind of gross negligence…The fact that…the defendant saw a risk and wrongly discounted it or stupidly thought it insignificant is simply compelling evidence of the grossness of his or her negligence.
Now as we know, the law commission has for some time been working on reforming involuntary manslaughter, and more recently, with the more major task of re-structuring homicide. They deserve congratulations on a difficult job well done. The proposed three tier structure: first degree murder, second degree murder and manslaughter (by criminal act or by gross negligence) is an improvement on the current position. But what of the medical cases under review here? The commission settles for gross negligence. In fact they go further (and clearly disagree with me!) in proposing to abandon reckless killings for manslaughter. This is a change from their previous position in 1996. I‟m not at all convinced by the reasoning for their recent change of heart. They cite the support of the CPS in favour of submerging reckless manslaughter into gross negligence – well, they would wouldn‟t they? After all, it is
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prosecution friendly – it‟s worth a punt. They also note that recklessness has proved a particularly problematic term. They are not wrong, although arguably things should be easier after the abolition of objective recklessness in the case of G. Somewhat strange, then, to put a lot of faith on the equally, if not more troublesome term, gross negligence?
But what is most striking is the essence of what they are saying here: that whilst these are, in their own words, properly thought of as „reckless killings‟, we don‟t like this difficult evaluative term so let‟s just deal with these under the wider heading of gross negligence. It‟s the same as saying that „intention‟ is a problem word in criminal law, so let‟s just process all „intentional killings‟ as „reckless killings‟. With respect, whilst an element of pragmatism is necessary here, and compromises are inevitable, this is hardly compliant with fair labeling, and does not adequately address the problems explored here this evening.
In their 1996 proposals the commission proposed to replace subjective reckless manslaughter with „reckless killing‟. This would be committed on proof of subjective awareness that the conduct risked death or serious injury. Their recent decision to ditch recklessness is explained by the fear of being unable to prove the defendant‟s subjective awareness at the time of the conduct in question. Of course, as Glanville Williams put it, „subjective theory is an ideal imperfectly achieveable‟. And the fear is misplaced. It‟s a red herring: famously (and controversially) introduced by Lord Diplock in Caldwell. After all, if it is such a problem, where is the evidence? How do we explain the high number of convictions on the basis of subjective reckless criminal damage? Or for that matter, convictions for violent offences? Granted, these comparisons may not be exact (the threshold will be lower for violent offences, for example), but the general point remains valid: without a confession as to state of mind, juries and magistrates will always draw inferences from behaviour. It happens all the time. It‟s their job! If it was reasonable to foresee a risk, they will conclude that the defendant did foresee the risk. Now this may not wash with dyed in the wool subjectivists, but it may be the best we can do.
How does this apply to the medical cases? In short, recklessness works. The (very few) cases which lead to conviction are classic subjective recklessness. Dr Walker who continued to remove a (larger than expected) liver tumour despite warnings that it was too dangerous. Unusually, and tellingly, he pleaded guilty. Dr Sinha, who gave a large morphine overdose to relieve the pain of severe arthritis in a patient with kidney failure. He refused to read her
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medical chart which was offered by her husband. He closed his mind to the risk. He was given a custodial sentence. And more recently, Dr Ramnath, who gave a fatal dose of adrenalin against the advice of three colleagues – a professional violation. The worry that prosecutors couldn‟t prove subjective awareness of risk is an exaggerated one. And as we have seen, some prosecutors are in fact searching for evidence of subjective fault.
But the problem of recklessness remains. Of course, it‟s not straightforward. Much ink (academic and judicial) has been spilt trying to define it. Despite the best attempts of, amongst others, Glanville Williams and Antony Duff, the courts have not settled on a coherent doctrine. The speeches of the law lords in G testify to this. Williams famously redefined recklessness to require that the risk would have been obvious to the defendant had he paused to think. Duff offers the test of „practical indifference‟, that is, „I couldn‟t care less‟. Building on this, Victor Tadros defines it as where the individual has „failed to fulfil his duty of investigating the risks…or has willfully blinded himself to the existence of the risks.‟ To summarise, we could say the following: where a doctor has special knowledge that certain procedures carry with them certain risks, and fails to investigate those risks without justification, criminal responsibility can be properly attributed on the basis of recklessness. This strikes the right balance in terms of its breadth. It should satisfy those unwilling to trust strict subjectivism.
But what about the standard lacuna case? A doctor is aware of the risk, aims to avoid it, but gets that wrong. And in getting it wrong, in making a mistake, we return to gross negligence: leaving the jury with a vague term and a difficult value judgment to make. I‟ve tried to demonstrate the significant problems with this concept. To my mind, these are the cases that should fall below the line. And the two obvious arguments against do not appear that strong. First, no one has persuasively argued that more prosecutions in the health setting would be a good thing – that is, it would improve patient safety. Secondly, a sceptic might question whether the shift from gross negligence to recklessness would make any difference in practice. Well, surely it would be surprising if this did not result in less prosecution. I think this would be a good thing.
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Conclusion:
I‟ll conclude by summarising what I have tried to argue here this evening. Medical errors (including fatal errors) are an inevitable feature of the delivery of health care. In terms of criminal law, it‟s not a question of 'should we / shouldn‟t we‟ but rather, where is the appropriate place to set the bar for liability? Gross negligence is too vague. Despite surviving a challenge in Misra, the issue of its human rights compatibility is not settled. There is no clarion call from the law‟s trumpet. It can (and has) been questioned on a philosophical level: that is, there is insufficient moral blame for criminal liability (especially for homicide). Its breadth leads to unfairness: lumping together cases of slips and lapses with those of clear recklessness. It fails the test of fair labelling.
And empirical examination reveals further reservations. Prosecutorial and expert evaluations show that the term is too broad and too open to subjective opinions. This translates into particular harshness for those exposed to prosecution by virtue of their risky yet socially vital work, often at the mercy of moral luck. Why continue to struggle with the vagueness and vagaries of interpreting gross negligence when there is no consensus about what it actually means and whether it should be a crime? In laying Caldwell to rest in the case of G, Lord Steyn said this: „The surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world‟. With a conviction rate around 30% - very low for homicide – gross negligence performs badly in the jury room. To my mind, the argument for abolition is clear and compelling. The bottom line should be recklessness. That term is not without its difficulties, and I wouldn‟t claim to have cracked the code in this lecture. But reformist energies should be channelled at revising recklessness. Criminal law should be a last (and rare) resort. We should limit the set menu of prosecutors to one course: recklessness.
Well, as we return to the food theme, a rumbling has replaced the butterflies in my stomach. And with the pleasant prospect of dinner to follow, I‟ll stop there. Thank you for listening and bon appetit!