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 benefits of culpable homicide over gross negligence manslaughter are addressed, with consideration 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 homicide, 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.
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 possible 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 distracted 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 ‘murder' 6 or ‘culpable homicide.’ 7 Although absent any ‘classic definition’, 8 as traditionally understood, culpable homicide ‘is the name applied in law to cases where the death of the person is caused, or materially accelerated, by the improper conduct of another, and where the guilt does not come up to murder’. 9 The crime may be best understood as a catch-all offence, which encompasses the full spectrum of killings, from those at the very cusp of murder to those where due to the defendant's perceived lack of culpability, it is questionable whether conviction for a serious criminal offence ought to apply. 10
For ‘academic’ analysis, a distinction may be drawn between voluntary culpable homicide and involuntary culpable homicide. 11 In relation to the former, voluntary culpable homicide is the label attached to killings where the defendant possesses the necessary mental element required for murder, yet due to diminished responsibility, 12 or provocation, 13 is convicted of the lesser offence. 14 The offence may also be employed by the Crown as a means by which to mark the lesser culpability of the defendant who kills with ‘wicked intent’ or ‘wicked recklessness’, yet due to the circumstances of the killing, 15 warrants a degree of prosecutorial ‘discretion’. 16 As to the latter, involuntary culpable homicide encompasses killings at the lower end of the spectrum of culpability, yet which due to the seriousness of the consequences, necessitates some form of formal state sanction. 17
Leaving aside purely ‘accidental killings’, involuntary culpable homicide can be further divided into both unlawful and lawful act types. 18 As to what amounts to an unlawful act, Scots law adopts a technical interpretation, 19 with the result that conduct ordinarily perceived to be criminal 20 will not suffice. 21 Rather, unlawful act culpable homicide can only be charged where death follows from an ‘assault or analogous cases [where the defendant's conduct] is directed in some way against the victim’. 22
For present purposes, it is axiomatic that unless a physician willingly harms their patient, any fatal medical error would not attract a charge of culpable homicide on the basis of an unlawful act. Rather, any healthcare practitioner whose medical mistake causes the death of their patient would be vulnerable to prosecution for lawful act involuntary culpable homicide. 23 The name given to killings committed by the defendant during the course of otherwise lawful conduct, 24 in addition to deaths which result ‘from [the defendant's] negligence, or rashness in the performance of a duty’, 25 it encompasses killings ‘where [the defendant] acts or fails to act with the requisite degree of culpability and death results’. 26 The crime has largely been employed to penalise vehicular homicides, 27 and requires the prosecution to establish recklessness. 28
As to what amounts to recklessness, judicial efforts to clearly articulate the threshold of culpability have resulted in an array of competing definitions.
29
The offence was famously stated in
Critically, the offence requires the defendant possess
Culpable Homicide: Benefits of Scots Law
Culpable homicide has been praised as preventing the criminalisation of some of the most contentious cases of medical manslaughter. 40 However, the recent amendments to gross negligence, namely the need for a physician's conduct to be ‘truly exceptionally bad’ 41 and expose the patient to an ‘objective and prospective’ serious and obvious risk of death, 42 have led commentators to conclude that any shift to Scots law would not lead to any meaningful decline in medical prosecutions. 43 To consider what benefits any comparable offence may bring it is, therefore, necessary to address why Scots law is considered to offer a more suitable means with which to criminalise fatal medical errors. The following analysis will highlight what may be considered the key advantages of culpable homicide, with a focus on the threshold of culpability, the language employed to describe the test for recklessness, and the distinct separation of tort, or delict, from the criminal law. Consideration will also be given to the lack of any ‘reference to homicidal attitude’ within the offence, 44 with analysis of how this may be considered an improvement over the domestic requirement for any breach to give rise to a ‘serious and obvious risk of death’.
The Need for Subjective Fault
Under English law, a gross departure from the standards of the reasonably competent doctor resulting in death is sufficient to ground criminal punishment. Although a physician's conduct must evince ‘such disregard for the life and safety of others’,
45
it is unnecessary to demonstrate ‘disregard
Once understood as requiring subjective fault, the appeal of culpable homicide is plain. Critics of gross negligence manslaughter have long noted that absent an intention to cause harm or a conscious disregard of risks, the prosecution of medical professionals for serious errors is inapt,
50
and ‘morally unsettling’.
51
Fatal clinical mistakes are seldom attributable to the sole actions of the errant doctor,
52
and where the fatal consequences of an agent's conduct are influenced by wider systemic factors, to impose penal sanctions without
Although the harshness of objective liability applies to all, doctors remain unduly prejudiced by the offence. Medicine is fraught with peril, with the result that clinical conduct which amounts to a departure from accepted practice is far more likely to cause harm capable of attracting criminal punishment. 58 For any other professional, to cause death at work is an unimaginable act of serious and career-ending gross misconduct. 59 Yet for a doctor, this prospect is not only a reality which they must face on a ‘daily’ basis, but may be considered an unfortunate consequence of their role. 60 Contemporary clinical care requires physician to make ‘complex professional judgments’ in ‘rapidly dynamic-adaptive environments’, 61 and unlike those in other risky professions, who when faced with impending peril, may decline to act, the clinician faced with a patient who may be gravely ill is unable to exercise a similar discretion. Rather, in certain situations, they must willingly pursue forms of treatment that poses significant dangers to the health of their patient. 62
Within a medical setting, the use of the criminal law to punish doctors ought to be a ‘last resort’. 63 Prosecution should be reserved for ‘wantonly bad’ conduct, 64 with sanctions for those who strive to fulfil their duties to the best of their abilities, yet make a fatal mistake inappropriate. 65 Absent ‘moral’ blame, a doctor's errors should remain the domain of civil law, with their respective professional body intervening where their conduct is inconsistent with proper clinical care. 66 Currently, the domestic criminal response to fatal medical errors operates arbitrarily on clinicians who commit a fatal mistake despite best efforts to ‘care’ for their patient. 67 Doctors whose clinical errors are attributable to their panic-stricken state, and mistaken belief as to the correct course of action in the circumstances, 68 are conflated with physicians whose behaviour demonstrates a complete disdain for their professional obligations. 69 Notwithstanding developments that have ‘tightened’ the test for gross negligence, 70 namely the need for an ‘objective and prospective’ serious and obvious risk of death, 71 the domestic offence still fails to properly differentiate ‘bad doctors’ from those whose error has caused the death of their patient. 72 Since a fatal departure from accepted clinical standards will not in itself ground punishment, culpable homicide avoids this possibility.
The requirement within Scots law for ‘indifference’ or ‘[utter] disregard’ can be seen as providing a significant limitation that is especially beneficial within a medical setting.
73
Where a doctor commits a fatal error, yet was trying to provide good quality care in difficult conditions, their behaviour cannot be considered ‘truly negligent’.
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In necessitating that the doctor not only fall below the standards required of them, but demonstrate an ‘[utter] disregard’ or ‘indifference’, the need for
The Lack of Circularity
In defining the threshold of grossness by reference to ‘conduct [that is] so bad…as to amount…to criminal’,
78
the test for gross negligence is beset by ‘circularity’.
79
As traditionally expressed, the definition of recklessness advanced in
In stressing the need for conduct manifesting an ‘utter’
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or ‘complete disregard’,
88
a ‘total indifference… for the safety of the public’,
89
Scots law clearly highlights that mere carelessness should not attract criminal punishment. It is evident that to amount to criminal negligence, the behaviour of the defendant must generate feelings of ‘outrage’ or provoke a response that they ‘deserves punishment’.
90
However, leaving aside the possibility that the outcome of death within a clinical setting is in itself sufficient to generate such responses, a claim which may in fact be supported by the return of a guilty verdict in relation to Doctors Adomako
91
and Bawa-Garba,
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inadvertence does not typically generate such feelings of ‘outrage’.
93
Rather, ‘outrage’ is manifested in response to acts that demonstrate that a doctor was indifferent to the welfare of their patient, that they willingly exposed their patient to an unjustifiable risk of harm and, therefore, were reckless.
94
The reference to ‘disregard’ in
The Separation of Tort and Criminal Law
Culpable homicide may also be credited with separating tort, or within Scots law delict, from a serious criminal offence. At present, gross negligence manslaughter is naturally reliant on civil terminology. The concepts of ‘duty of care’ and ‘breach’ are central to the offence, shaping the threshold of punishment and the extent of criminality. 99
As widely acknowledged, the use of civil language within a criminal offence introduces unnecessary ‘confusion’ into the law. 100 Where criminal responsibility is imposed for an omission, the presence of a ‘duty of care’ often leads to basic elements of criminal liability being overlooked. 101 As opposed to examining whether a recognised duty to act exists and subsequently proceeding to assess whether the constituent elements of the offence are satisfied beyond a reasonable doubt, the presence of a duty of care is often ‘conflat[ed]’ with a duty to act, 102 detracting from any significant judicial articulation as to why liability for any failure to act has been imposed. 103 This imprecision not only results in the imposition of criminal liability for gross negligence by an omission where no clear recognised duty to act exists, 104 but also renders it nigh on impossible to clearly delineate the boundaries of the instances of where a duty to act may be imposed. 105
Notwithstanding their familiarity to legal practitioners, as a guide with which to determine the ‘grossness’ of any defendant's conduct, references to the need for the defendant to have ‘breached their duty of care’ offer jurors little by the way of assistance. 106 As a tort, negligence is hardly simple 107 and is often heavily influenced by chimera-like concepts of ‘policy’ which obscure the true reasoning underlying any decision. 108 To assert that any finding of grossness is therefore ‘common sense' and ‘just like negligence in civil law’ is far from helpful. 109 Rather, given the presence of a well-established tortious relationship between a doctor and their patient, and the fact that death has occurred as a result of their ‘breach’, a jury may be inclined to adopt a punitive assessment of a physician's conduct, engaging in ‘ex post facto reasoning’. 110
Despite judicial efforts to provide legal clarity, 111 uncertainty as to the true scope of the requirement of a ‘duty of care’ also remains. 112 The weight attached to the distinct policy elements which shape the imposition of any duty in tort law is unclear, with doubts as to whether the criminal concept adopts a far more exacting standard, which simply grounds the imposition of responsibility on the risk to others created by the defendant. 113 In order to prevent the nuances of tort law from exculpating the defendant engaged in unlawful conduct, 114 the court has developed the crime in a manner that pays scant regard to Lord Mackay's outline of the offence. 115 Although ‘logical’, this has resulted in two contrasting approaches to the duty requirement. 116 Where the defendant was engaged in lawful conduct, such as the medical practitioner, the existence of any duty is determined in accordance with ‘ordinary principles of tort law’. 117 Yet should both the defendant and their victim be engaged in any criminal enterprise, regard is had to ‘public policy’ to establish any duty, with this unwieldy notion permitted to ride roughshod over well-established tortious ‘principles’. 118
Although culpable homicide may be committed where the defendant ‘neglect[s] [their] duty’,
119
unlike gross negligence, the offence is not contingent on the need to establish a ‘duty of care’ in the tortious sense.
120
Rather, as stressed by Lord Osborne, ‘there is
Avoiding the Implications of Rose
Further benefits also arise when consideration is given to more contentious aspects of
For Laird,
Where a doctor attempts to fulfil their duty, yet due to their own incompetence, fails to identify a ‘serious and obvious risk of death’, absent an indication that their conduct was the result of apathy towards their patient, their actions may be regarded as an unfortunate mistake, which does not manifest vice.
137
Absent any blameworthy trait, their conduct may, therefore, be argued as falling short of demonstrating the necessary ‘utter disregard’ or ‘total indifference’ required by Scots law. By focusing on the reason for the doctor's negligence, culpable homicide does not inculpate the morally blameless at the expense of those who, for no good reason, make no effort whatsoever to fulfil their clinical responsibilities. Moreover, since a dereliction of one's duty of care falling short of manifesting wilful blindness to risks would no longer possess the exculpatory properties that follow from
Given the ‘absence of reference to homicidal attitude’,
141
concerns may be raised as to whether culpable homicide has the potential to sanction the criminalisation of minor clinical errors which carry only a negligible risk of death, or even serious injury, yet due to unforeseen circumstances become fatal. Imposing punishment for manslaughter where the defendant lacks foresight of the risk of death has long been acknowledged as unreasonable.
142
Indeed, prior to the decision in
Nonetheless, when consideration is given once more to the need for conduct manifesting an ‘utter disregard’, 148 it is arguable such fears are overestimated. In addressing the requisite ‘degree of risk of harm’ required before the conduct of a defendant can be considered criminally negligent Yeo has noted gross negligence requires a ‘high degree of risk’. 149 Accordingly, as with gross negligence manslaughter, a conviction for culpable homicide necessitates ‘that the conduct [of the defendant] be of a grave kind’. 150 If a physician is aware of a minor risk to the health of their patient, yet willingly takes that risk, absent clear therapeutic benefits of pursuing the dangerous conduct, their behaviour may be considered reckless. However, due to the gravity of the risk posed by their actions, their conduct arguably falls short of manifesting an ‘“utter disregard” of or “indifference” towards a risk’. Unless the risks posed by the physician's conduct are so serious as to expose the patient to a clinically unjustifiable risk of death, or especially serious harm, it is arguable that the requirements of ‘utter disregard and total indifference’ will not be met.
Culpable Homicide: The Misguided Allure of Scots Law?
If culpable homicide is to form the basis of any novel crime, Scots law must provide a clear improvement over domestic law. However, culpable homicide has long been beset by a dearth of legal clarity, 151 with the ambiguous nature of the offence prompting criticism and a call for legislative reform. 152 Moreover, in a medical setting, doubts have been raised as to whether Scots law offers not only an improvement over gross negligence, but any meaningful change. 153 This section will, therefore, consider the flaws inherent within culpable homicide to ascertain whether it represents an improvement over gross negligence.
The Illusion of Subjective Fault
As is now clear, culpable homicide cannot be established simply following a death where the defendant failed to attain the standards required of the reasonable man.
154
Rather, ‘
However, in considering the approach taken to recklessness in Scots law, it is critical to acknowledge the difference between a subjective ‘
As doctors are well qualified, where death results from a clinical error, the errant physician will almost certainly be alert to the risks within their conduct.
169
The need for subjective
When consideration is given to the states of mind that gross negligence captures, and the consequences of recent appellate decisions,
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doubts may also be raised as to whether Scots law actually requires a higher degree of blameworthiness than the domestic offence. As traditionally expressed, the test in
On closer analysis, the need for the conduct of the defendant to have fallen ‘
In the context of investigation and diagnosis, it is arguable that gross negligence manslaughter will now only be made out where a patient presents with symptoms that are so unambiguous as to reveal a clear risk of death should they not receive timely medical care. Given the threat to their health, a doctor who, absent any clinical justification refuses to treat such a patient is not only alert to the risk posed by their actions but may be considered indifferent to such an extent that their conduct is close to an intention to cause harm. This interpretation effectively excludes a failure to treat all but the most unwell patients, or those where the symptoms are so obvious, that diagnosis could be undertaken by a layperson, as where the risk is less than ‘striking’ or requires ‘further investigation’, the ingredients of the offence will not be made out. A clinician who refuses to treat a patient displaying obvious symptoms arguably manifests ‘an utter disregard’ for their patient and possesses a ‘state of mind which…is equivalent to a complete indifference to the consequences of his conduct’. 185 When taken cumulatively, although the threshold of culpability for gross negligence manslaughter appears to be lower than that of culpable homicide, given the interpretation afforded to the offence by the Court of Appeal, 186 English law may be considered to be already working to a standard equivalent to that required north of the border. Alternatively, since Scots law does not require a risk of death, 187 it may be argued that English law in fact requires a higher threshold of culpability than culpable homicide, with behaviour that is equivalent to an ‘utter disregard’ which creates a ‘serious and obvious risk of death’.
Archaic Language and the Return of Circularity
Homicide offences ought to be drafted in clear succinct terms, which promote ease of understanding and certainty of definition. 188 Yet as opposed to plain language, Scots criminal law is dogged by ‘archaic’ 189 terminology. The homicide offences have come under particular criticism, with the use of ‘moralistic’ terms, 190 thwarting ‘analytical accuracy’ 191 and leading to problems ‘in application’. 192 Regrettably, when the language of culpable homicide is analysed, these concerns arise, casting further doubt on the benefits of Scots law.
Although the test for culpable homicide may be considered an improvement over Lord Mackay's guidance on gross negligence, the judicial musings on culpable homicide are hardly clear. 193 Describing the degree of recklessness as that which is ‘so high as to involve an indifference to the consequences for the public generally’ 194 is circular, 195 whilst the use of the term ‘wicked’ as an alternative description to describe the ‘state of mind’ required is also problematic. Although a distinctive feature of Scots law, 196 the term is not only absent any legal definition, but far from plain. 197 Accordingly, uncertainty abounds as to the exact interpretation of the phrase, and the type of conduct that demonstrates ‘wicked indifference’. Although doctors whose carelessness has resulted in the death of their patient are often pilloried by the press, when applied to medical killings, the term ‘wicked’ is often reserved for the most heinous acts of clinicide. 198 As a means to describe the degree of carelessness that a doctor must demonstrate before facing criminal punishment, ‘wicked’ runs contrary to the everyday usage of the term, obscuring legal clarity.
The use of the term ‘gross’ in lieu of ‘wicked’ 199 is equally uninformative, with the way in which both are used interchangeably problematic. Although stressing the need for something more than ‘mere indifference’, a distinction arguably exists between ‘wicked’ and ‘gross indifference’. Reference to ‘gross indifference’ suggests that the conduct of the defendant is assessed simply by having regard to the level of their risk-taking, with no consideration as to the motivations underpinning their actions. The phrase seemingly captures the agent whose risk-taking is attributable not only to any ill-will towards the victim but also rather a selfish prioritisation of their own interests. By way of contrast, ‘wicked indifference’ seemingly refers to a far more blameworthy state, which requires the defendant to demonstrate cruelty or a greater degree of callous indifference towards the victim that is distinct from that which may be inferred where the agent simply fails to attach the appropriate weight to the interests of others. In short, whereas ‘gross’ refers to the level of indifference, ‘wicked’ seemingly refers to the nature and quality of the indifference. Whilst it is true that the conduct of both the ‘grossly indifferent’ and ‘wickedly’ indifferent actor demonstrate insufficient motivation towards the interests of the victim to warrant punishment, the label ‘gross indifference’ is seemingly less condemnatory and morally evocative than ‘wicked’. However, by noting that the conduct of the defendant must manifest ‘gross or wicked ... indifference to consequences', 200 both are swept up by the offence, with the result that, like gross negligence manslaughter, culpable homicide arguably conflates the blameworthiness of those convicted, thereby ‘wash[ing] over fair labelling’. 201
Further confusion arguably arises in relation to the use of the adjectives ‘total’,
202
‘complete’
203
and ‘utter’.
204
Although seemingly used to qualify the degree of risk-taking required to ground conviction, it is questionable as to whether either term adds anything of substance. When the need for ‘total indifference' is taken with the requirement of a ‘disregard for the safety of the public,'
205
the use of the conjunctive ‘and’ is indicative of a higher degree of disregard than that stipulated in
If it is accepted that it is possible for ‘indifference' or ‘disregard' to be total, Scots law consequently requires jurors to not only draw a distinction between various degrees of ‘indifference' and ‘disregard’, but also to assess the conduct of a doctor having regard to this fictionalised standard. However, if jurors lack any ‘personal point of reference’ for negligence, 211 it is dubious as to whether they possess any similar gauge for ‘indifference’ or ‘disregard’. Moreover, due to the lack of clarity regarding the terms, it remains uncertain as to what transforms ‘mere indifference’ to ‘total indifference’, or a simple ‘disregard’ to an ‘utter disregard’. Although the absence of any charges against healthcare professionals hinders efforts to further understand this distinction, it is possible that in addition to serious instances of medical malpractice, departures from accepted clinical conduct, committed over a prolonged period of time would suffice, with the continued failure to provide appropriate care suggestive of ‘total indifference’ as opposed to ‘mere indifference’. However, beyond these extremes, considerable doubt exists, with particular ambiguity as to whether the requirement of ‘total indifference’ would serve to exculpate a clinician who has committed a serious clinical error, yet made a token attempt at fulfilling their duty. If afforded a strict interpretation, the need for ‘complete indifference’ 212 or a ‘complete disregard’ 213 arguably curtails criminal responsibility to the extent that a doctor who makes any attempt whatsoever to minimise or avoid the risks posed by their actions may avoid conviction, despite clear knowledge of the risks within their conduct. That trivial efforts to provide care, notwithstanding clear deviations from accepted practice, may be exculpatory is clearly troubling, as this interpretation would effectively sanction sub-optimal levels of clinical practice that nevertheless result in the death of a patient. However, such concerns may be considered subsidiary to the complete lack of prosecutions brought against healthcare professionals in Scotland, especially those whose behaviour is arguably deserving of punishment. 214
When viewed from a clinical perspective, the uncertainty inherent within the language adopted by Scots law is concerning. The draconian nature of both the criminal trial and investigation process is such that the law ought to strive for ‘maximum clarity’ in setting out ‘just
At present, the competing ‘terms’ employed by medics and lawyers alike to describe grossly negligent conduct do little to promote legal understanding, as there is a lack of clarification regarding when any clinical error will go beyond mere negligence to warrant criminal punishment. 220 Rather, the uncertainty perpetuates the mistaken belief that mere ‘negligence’ will result in punishment. To ensure that physicians understand when fatal errors may lead to criminal sanctions, consistency of expression is critical. 221 What differentiates ‘poor performance’ from ‘misconduct, negligence and criminality’ ought to be identified with precision. 222 Legal certainty is critical not only to comply with fair warning 223 but also to promote a ‘culture [of] learning’. 224
As identified, in relying on overly ‘moralistic’ terms, culpable homicide arguably fails to provide any meaningful clarity on the exact point at which a clinical mishap sufficient to warrant civil sanctions will also lead to criminal punishment. As opposed to facilitating a rational assessment of whether the defendant's conduct demonstrates unjustifiable risk-taking, the emotive language replicates the overly subjective and ‘unscientific’
225
approach that plagues the domestic offence. In their proposals for a Scottish Criminal Code, the authors omitted references to ‘wicked’, ‘gross’ ‘disregard’ and ‘indifference’, preferring to rely on a more contemporary definition of recklessness satisfied on proof that the defendant ‘is or ought to be aware of an obvious and serious risk’.
226
Given this reluctance to embrace the current terminology in any model of reform, it is ironic that the adoption of disputed
The Relevance of Wider Systemic Errors
Further criticisms may be levied at culpable homicide due to the insufficient attention that is seemingly given to any relevant wider circumstances. As expressed by Lord Mackay, when considering whether the conduct of the defendant is criminal, the grossness of their behaviour must be assessed having regard to ‘all the circumstances’. 228 Due to the lack of clarity within gross negligence, this reference to ‘context’ is especially important, enabling those who must judge the behaviour of a defendant to have regard to a host of wider ‘explanatory factors’. 229 However, at present, such matters are often overlooked during the trial process, with clinical decisions undertaken by a doctor required to act with the utmost urgency examined ‘in the cold light of the courtroom’, 230 leading to a punitive assessment of those who simply ‘panic[ked]’. 231
Unlike Lord Mackay's circular statement, the test for culpable homicide is seemingly silent regarding the extent that institutional errors may have on the conduct of any errant clinician. Given the grave nature of a manslaughter conviction, it is critical that where wider systemic errors have contributed to a doctor's mistakes, the legal response properly acknowledges the significance of matters beyond their control. 232 Consideration should be given not only to well-known flaws, but salient causal factors discovered by a trust following the occurrence of any fatal patient safety incident. 233 Any assessment of a clinicians ‘state of mind’ should thus consider the ‘surrounding circumstances’, with the extent to which their conduct is alleged to have fallen below the relevant legal standards examined against the wider institutional environment in which the error occurred. 234 This is important not only for reasons of fairness to the individual clinician but also to prevent the ‘over-criminlis[ation] [of] healthcare’. 235 In so far as efforts to reform the law are aimed at ensuring appropriate weight is given to ‘all the circumstances’, culpable homicide thus offers little by way of improvement. Rather, Scots law may be criticised as failing to overtly focus attention to ‘all the circumstances’. That clinical commentators seek to introduce an offence that lacks any direct reference to ‘all the circumstances’ is thus somewhat surprising.
To an extent, it may be argued since a mere failure to comply with an ‘objectively set standard’ is insufficient to ground criminal conviction,
236
wider systemic errors may be implicitly taken into consideration by the jury when seeking to determine whether the defendant's conduct demonstrated the necessary utter disregard required by Scots law. As noted in
As culpable homicide seemingly exculpates all but the most blameworthy clinical errors, the lack of any direct reference to ‘all the circumstances’ may also pose little real cause for concern. The conduct of the ‘cavalier’ surgeon, who continues with an operation notwithstanding warnings not to do so,
238
is hardly mitigated by the claim that they were unsupported by the hospital trust.
239
Similarly, absent a lack of factual causation which would otherwise prove to be exculpatory, the doctor who carries out clinical treatment whilst under the influence of drugs
240
or alcohol,
241
and subsequently causes the death of their patient, cannot claim that in light of wider institutional failures, their actions do not warrant criminal punishment. Rather, such ‘morally disgraceful’
242
behaviour can be considered a ‘violation’ that is far removed from the isolated, yet fatal careless act of the inadvertent physician.
243
Although the approach taken to systemic errors by the current law is clearly inadequate, concerns raised at pithy treatment
244
of the Trust's failures in
Nonetheless, efforts to defend the absence of any direct reference to ‘all the circumstances’ within culpable homicide by having regard to the higher threshold of fault arguably gloss over the importance of wider systemic errors. To properly determine whether an agent is the rightful subject of criminal punishment, consideration must be given to all the circumstances surrounding the defendant's conduct, and why they acted in the manner that they did. 246 Irrespective of how the law is framed, the nature of the environment in which any medical error occurred ought to be emphasised, with the impact that the modern medical setting can have on a physician's cognitive processes afforded proper weight. 247 As such, systemic errors must be pivotal to the assessment of a doctor's guilt regardless of whether the threshold of culpability is set at recklessness or gross negligence.
The Role of Prosecutorial Discretion
In considering the legal response to fatal clinical errors north of the border, it is equally important to not lose sight of the jurisdictional differences beyond the substantive law, and the impact that this has on the treatment of medical mistakes in the criminal justice process. In Scotland, any charge of culpable homicide against a physician must be approved by the Lord Advocate. 248 The decision to prosecute must be in the ‘public interest’, 249 with consideration afforded to both matters of criminal justice and the need to protect the wider ‘patient safety culture’. 250 The notion that subjecting healthcare professionals to criminal punishment is, for the most part, inconsistent with securing the goals of safer healthcare is also prevalent, with acknowledgment of the dangers of defensive medicine posed as a direct reaction to unnecessary prosecution. 251
This is in sharp contrast to the domestic approach. At present, although corporate manslaughter 252 requires the consent of the Director of Public Prosecutions, no such restriction is imposed for the doctor facing a charge of gross negligence. As opposed to a ‘consistent basis’ on which to determine when to pursue criminal charges, 253 the decision to prosecute is seemingly contingent on ‘chance’ and character assessments. 254 Elusive notions of ‘badness’ are employed to determine the appropriateness of any potential charge, 255 with prosecutors purportedly reluctant to pursue sanctions without subjective fault. 256 Although previous academic research has highlighted how wider ‘public interest’ factors play an exculpatory role, 257 little regard is allegedly given to the implications that any prosecution may have on ‘patient safety’. 258 Rather, the pursuit of criminal charges against any physician is supposedly based on whether the prosecution can secure victory, with medical experts not only sought by the prosecution to ensure any ‘win’ 259 but also replaced where their assessment of the doctor's conduct is that it is far from criminal. 260
In Scotland, the dearth of prosecutions against doctors can be considered attributable to a combination of both the higher threshold of culpability,
In light of the role that prosecutorial discretion plays in Scotland, this additional proposal appears eminently sensible. Cases of medical manslaughter commonly involve tragic accidents, in which a habitually caring doctor has inadvertently caused the death of a vulnerable patient. The implications of prosecution must be balanced with the interests of the deceased's loved ones, and their expectations of justice. Institutional failures may have influenced the negligence of the doctor, with the actions of other colleagues equally sometimes playing a role in the death of the patient. Within England and Wales, it is often asserted that the unifying thread that connects the array of crimes necessitating the consent of the DPP is ‘that, in each instance, the weighing of the discretionary factors relevant to the decision to prosecute is likely to be a particularly sensitive and difficult exercise’. 263 Clearly, when consideration is given to the range of offences requiring personal consent of the DPP, 264 and the nature of medical manslaughter cases, it is curious as to why the prosecution of any healthcare professional does not require personal authorisation.
However, notwithstanding the ease with which such changes could be brought into action, doubts may be cast as to both the suitability and efficacy of the Society's proposals. 265 Leaving aside minor transgressions relating to potential ‘administrative issues’, 266 given that clinicians are not alone in facing charges for gross negligence manslaughter, it may be argued that any comparative consent requirement is not only ‘unreasonable’ 267 but unnecessarily deferential to the medical profession. Although the ‘socially vital work’ that they perform is often cited as a means with which to afford physicians ‘special immunity’, 268 with the dangers inherent within medicine also considered to render them unique, the risks faced by doctors are similarly faced by those within the armed forces and emergency services. 269 Clinical commentators frequently note that ‘no special case should be made for doctors’, 270 and not even the most ardent supporter of the medical profession would deny that the work performed by those within the emergency services is of comparable social importance. If the consent of the DPP ought to be required before a criminal prosecution for manslaughter can be brought against a doctor, it is questionable as to why any similar requirement should not be introduced in relation to members of the emergency services. The Law Commission has previously stressed that it should be the ‘particular offence, not the circumstances of a defendant or a class of defendants’ that warrants authorisation from either the DPP or Attorney General. 271 Despite attempts, efforts to identify any unifying thread linking the breadth of offences requiring consent have been considered ‘impossible’, 272 and to distinguish doctors from other classes of defendant would merely add to the illogicality of the present position.
Proposals which seek to introduce any comparative consent requirement equally overlook the role of senior decision-makers. Although prosecution in Scotland requires the consent of the Lord Advocate, authorisation to pursue criminal charges may be attained by ‘an Advocate Depute, on behalf of the Lord Advocate’. 273 Likewise, where an offence requires the consent of the DPP, this may be provided by any Crown Prosecutor. 274 In both jurisdictions, the consent requirement is thus far from one requiring ‘personal’ approval in the ordinary sense. Given these similarities, it is debatable whether the introduction of any consent requirement comparable to that found in Scotland, ‘would make any practical difference’. 275
Following a Scots Law Approach in England and Wales
In addition to advocating support for culpable homicide, the response of the Medical Protection Society requested judicial investigation into ‘how a comparable offence of culpable homicide could replace GNM…’. 276 To date, however, little analysis has been undertaken into how a ‘comparable offence’ could replace the domestic law. This section will now consider two possible ways that Scots law may replace the current law, before applying a novel offence based on culpable homicide to Dr Bawa-Garba and Dr Adomako.
A Hybrid Approach
In a hybrid approach, the crime of gross negligence manslaughter could continue to exist in name, with merely the threshold of grossness subject to amendment to reflect that required for involuntary lawful act culpable homicide. Should Scots law merely inform the threshold of culpability, a conviction for gross negligence manslaughter would be contingent on the prosecution proving that the defendant's departure from accepted standards demonstrated the necessary degree of fault required by culpable homicide. To satisfy the offence, gross negligence would thus require a breach of duty which gives rise to a ‘serious and obvious risk of death’, assessed ‘objectively and prospectively’, which demonstrates an ‘utter disregard of the consequences’.
When consideration is given to the clarification afforded to what amounts to a ‘serious and obvious’ risk of death in
A Novel Approach
Alternatively, involuntary lawful act culpable homicide could replace gross negligence manslaughter as a distinct limb of involuntary manslaughter. A novel offence applicable to doctors and lay persons alike, the offence could take both the form and name of the crime as currently relied upon in Scotland. Naturally, given the uncertainties regarding the content of any novel offence, it is not possible to conclusively establish the type of reform considered most palatable by advocates of Scots law. However, it is arguable that in seeking review into how a ‘comparable offence of culpable homicide could replace gross negligence manslaughter’, supporters of Scots law do not seek piecemeal reform, but rather, favour a ‘bold[er]’ solution. 280
When subject to closer scrutiny, further support for a novel offence may also be found, as efforts to fuse elements of Scottish law with the domestic offence may marginalise the previously identified benefits of culpable homicide. Indeed, should the Scottish test be combined with the
This criticism is far from unique to proposals seeking the adoption of culpable homicide. Rather, any proposed reformulation of gross negligence which retains the
In retaining references to ‘breach’ and ‘duty’, the hybrid approach also remains open to criticism. As highlighted above, the use of civil language within a criminal offence introduces unnecessary ‘confusion’ into the law, and within a criminal setting, such phases ought to be ‘avoided’.
291
Gross negligence manslaughter has long been ‘bedevilled by interpretative difficulties, and ad-hoc solipsistic initiatives’,
292
and piecemeal tinkering in the form of isolated reform of the test for grossness merely perpetuates this trend. Although the clear existence of a duty of care between a doctor and their patient is such that the elements of ‘breach’ and ‘duty’ are not problematic, the use of these terms within the ingredients of a novel offence runs the risk that the need for an ‘utter disregard’ to be manifested will be overlooked. The conduct of the defendant doctor may, therefore, be assessed having regard to the civil standard of negligence, not ‘recklessness so high as to involve an indifference to the consequences’.
293
This is especially so given the linguistic similarities between the threshold of culpability required by Scots law, namely the need for the conduct of the defendant to demonstrate a ‘disregard for the safety of the public’,
294
and the test in
Application of the Novel Offence
Having settled on the form that any comparable offence may take, consideration will now be given to how the novel crime may apply to well-known cases. Turning first to a decision that sent shockwaves through the clinical community, 297 Dr Bawa-Garba was convicted following a series of clinical failures that resulted in the death of Jack Adcock, a 6-year-old boy who presented with symptoms indicative of sepsis. 298 When the conduct of Bawa-Garba is examined, it is undeniable that her treatment of the young patient was marred by a host of significant ‘errors’. 299 Although imposing punishment for isolated instances of carelessness absent subjective fault is to adopt an especially blameworthy stance, where the death of a patient arose due to multiple and prolonged departures from accepted clinical practice, responsibility may be fairly imposed. 300 For any clinician, their foremost ‘moral responsibility is due care and personal concern for their patients’. 301 In failing to provide competent clinical care, Bawa-Garba can be regarded as infringing the victim's ‘moral right’ to appropriate treatment. 302 Although considerable attention is often given to the wealth of ‘wider systemic’ factors present within the case, 303 when examined through the notion of ‘unexercised capacity’, 304 her acquiescence to work may be considered blameworthy. 305 Bawa-Garba possessed the ‘capacity to make a different choice’, yet failed to ‘exercise her right to choose not to work’, or to draw on the support of her colleagues. 306
Nevertheless, when consideration is given to the ‘difficult[ies of] diagnos[is]’ it is questionable ‘why’ Bawa-Garba's conduct was deemed to warrant criminal punishment. 307 As a clinical condition, sepsis is far from easy to identify. 308 Markers of infection can be ‘subtle’, 309 and serious infection may advance rapidly without any prominent exterior manifestation. 310 Whilst the victim displayed some signs of infection, the diagnosis could hardly be regarded as conclusive. 311 In witnessing her patient ‘bouncing about’, 312 Bawa-Garba was ‘falsely reassured’ as to the seriousness of his condition, 313 with the timely manner in which his health improved further obscuring the reality of the situation. 314 Although it will always remain uncertain as to whether her mistreatment of the victim was the result of incompetence or inattention, 315 it is arguable that as with Dr Adomako, Bawa-Garba closed her mind to the possibility of serious infection. Her mistaken belief that the treatment administered was sufficient led her to erroneously discount the possibility of sepsis, with drastic consequences. Rather than being ‘deliberate or reckless’, 316 Dr Bawa-Garba was merely ‘doing her clinical best’ in difficult circumstances. 317
Having regard to the need for both subjective fault, and a ‘complete disregard of the consequences’ a novel offence of culpable homicide would arguably exculpate Dr Bawa-Garba. Although her treatment of Jack fell short of the necessary clinical ‘excellence’ required in the circumstances, 318 her ‘neglect’ was not the product ‘laz[iness] or… selfish[ness]’, 319 significant character flaws which are indicative of indifference, warranting criminal punishment. To the contrary, when consideration is given to her otherwise blemish-free clinical history, it is possible to assert that Bawa-Garba was devoted to ‘achiev[ing] excellence through diligent clinical practice’. 320 Her decision to work in difficult conditions was the product of ‘loyalty and fortitude’ to her colleagues and the hospital trust, qualities which are synonymous with an Aristotelian concept of a ‘virtuous doctor’. 321 With the absence of any morally blameworthy character trait casting doubt on the appropriateness of her prosecution, it is fitting that culpable homicide would arguably prevent any conviction in such circumstances.
As to Dr Adomako, it may be considered that due to the extent of his clinical failures, his behaviour would surely amount to an ‘utter disregard’ or ‘indifference’. As a trained anaesthetist Adomako would be alert to the dangers should the endotracheal tube become dislodged, with his actions chastised as ‘abysmal’. 322 However, when consideration is given to the manner in which erroneous medical treatment, undertaken by a physician who holds a ‘genuine belief’ that they are acting in the ‘best interests’ of their patient, is seemingly treated in Scotland, a far less punitive stance is possible. Despite causing the death of an unborn baby during an unsuccessful vaginal delivery, Dr Laxman was spared criminal prosecution for culpable homicide and acquitted by the Medical Practitioners Tribunal Service of serious misconduct. 323 As opposed to ‘sustained’ clinical negligence, her failure to proceed with an emergency caesarean was regarded as a ‘single error of judgement’, with her attempts to deliver the child attributable to a mistaken yet fatal belief that her actions were in the ‘best interests’ of the mother and infant. 324
As with Dr Laxman, Adomako's error was an isolated lapse of judgement. Whilst any ‘competent anaesthetist’ ought to have been alert to the disconnection, it is clear that Adomako believed his efforts to resuscitate patient were the most prudent course of action to take, and in their best interests. Notwithstanding his failures, his behaviour does not demonstrate significant ‘evidence of recklessness’, 325 and falls short of amounting to a ‘disregard’ of his duty. 326 Accordingly, it is arguable that Dr Adomako would avoid criminal prosecution. Given the absence of any blameworthy character trait manifested by his conduct, 327 a novel offence based on Scots law may be regarded as providing a sufficiently strict threshold of culpability that exculpates fatal medical errors where the physician lacks moral blame.
Destabilising the Existing Rickety Ladder: Wider Implications of Any Novel Offence
In considering reform of gross negligence manslaughter, it must be remembered that amendments to the homicide offences do not occur within a legal vacuum. Although a novel offence avoids marginalising the identified benefits of culpable homicide, efforts to undertake principled reform by ‘“cherry picking” elements from another jurisdiction’ poses significant risks. 328 Involuntary lawful act culpable homicide is merely one of the ways in which the offence may be charged, with the crime ultimately forming part of a wider homicide structure, which adopts a far broader approach to intentional killings than in England and Wales. 329 Suggestions for reform that seek to incorporate selective parts of any crime often run the risk that proper consideration will not be given to the components of the existing homicide offences, 330 and this eclectically selective style to legal reform, in which measures for improvement are shoehorned into established systems, can often lead to detrimental results. 331
Within England and Wales, involuntary manslaughter has long been a source of academic debate. 332 The crimes that comprise the offence must be grounded on ‘principle rather than instinct’, 333 yet in recent years, the criminal law has been plagued by Parliamentary short-sightedness of ‘structure, coherence and guiding [legislative] principles’. 334 As a result, novel, and often superfluous offences have been introduced with unnecessary verve, 335 in a seemingly ad-hoc manner. 336 To avoid exacerbating the existing ‘jumble’, 337 it is critical to avoid repeating such mistakes. Consideration must, therefore, be given to the ‘practical consequences’ 338 of legislative reform, and the position of any novel offence based on Scots law within the famously unstable ladder. 339
As opposed to a simplification of the present tripartite system,
340
should a novel offence of culpable homicide replace gross negligence manslaughter, ‘involuntary manslaughter’ would comprise of three distinct crimes, specifically, unlawful and dangerous act, subjective reckless manslaughter, and the novel offence. In setting subjective recklessness as the threshold at which deaths not attributable to unlawful conduct
Nonetheless, should a comparable offence of culpable offence be adopted, involuntary manslaughter would consist of two crimes of recklessness. This raises concerns regarding prosecutorial discretion and duplicity. As to prosecutorial discretion, in determining the most appropriate charge to pursue against any defendant, prosecutors must ensure that, inter alia, the charges brought properly highlight the ‘seriousness and extent of the offending’ and provide the court with ‘adequate sentence[ing] powers’.
349
Where a number of crimes exist, providing the ‘interests of justice’ are met, prosecutors need ‘not’ pursue the most egregious charge, but may proceed with a ‘lesser [offence]’.
350
Although clinical killings are customarily prosecuted as gross negligence, it is possible to identify the use of reckless manslaughter within a medical setting,
351
with two GP's convicted
352
for ‘administer[ing] an astonishing cocktail of drugs’
353
to an adult male in police custody.
354
Should the Scottish approach to sentencing apply in England and Wales, the novel offence would carry the same sentence range as reckless manslaughter, namely an absolute discharge to life imprisonment.
355
Conduct that would suffice for culpable homicide would arguably meet the test for reckless manslaughter, as where the carelessness of doctor evinces a ‘utter disregard’ for the consequences, they will have foreseen a risk yet gone on to take it, or deliberately closed their mind to a serious and obvious risk. With both offences providing the court with the same degree of sentencing discretion, clinical killings where the doctor clearly demonstrated subjective fault could be brought under the novel offence,
Given the higher threshold required by Scots law, namely ‘an utter disregard of…the consequences…’ 356 , as opposed to the conscious taking of an ‘unreasonable risk’, 357 a novel offence may in fact lead to a resurgence of reckless manslaughter. With gross negligence no longer available as a means with which to ‘mop up’ 358 unintentional killings, where the conduct of a doctor is clearly reckless, yet falls short of demonstrating an ‘utter disregard of the consequences’ reckless manslaughter offers the only real alternative. Obviously, criminal responsibility for killings committed by a doctor whose conduct was insufficient to satisfy the novel offence would be contingent on prosecutors deeming their conduct to satisfy the public interest test, however, at present, where death has occurred, ‘exceptionally extenuating circumstances’ are required to justify such a decision not to prosecute. 359 Given the extent of their departure from proper clinical standards, it remains hard to see how such conscious risk taking resulting in death would therefore avoid criminal punishment.
The presence of two offences of recklessness also has detrimental consequences for the wider structure of homicide. At present, the manner in which the homicide offences are grouped is ‘morally’ objectionable. 360 Unlawful killings ought to be grouped ‘within a hierarchy of offences’ in which, ‘degrees of seriousness’ are recognised and excessive ‘overlap’ is avoided. 361 Crimes should not be distinguished having regard to ‘fine grained distinctions’, but structured in an unambiguous manner in which the differences in culpability are easy to identify. 362 Commonly known as the ‘ladder principle', clear graduation is critical not only to ensure fairness to the defendant, 363 but to enable the ‘development of rational sentencing principles’, 364 and prevent hindering the communicative function of the law. This is especially important in relation to the homicide offences, as when faced with a defendant who has killed another, any instinctive assessment of their blame is often flawed. 365 As such, ‘the law provides guidance…where our intuitions… fail us’. 366
In light of the deficiencies within the present ladder, the Law Commission has urged that ‘the scope of and distinctions between [the] individual offences…be made clearer and more intelligible’. 367 Yet when consideration is given to a new culpable homicide offence, it is questionable whether the proposal would achieve these aims. Currently, the lower rungs on the homicide ladder can be identified having regard to the agent's awareness of risk and the legality of their conduct, with the inadvertent agent's lack of awareness primarily relied upon to distinguish their conduct from more serious offences. Despite the conflation of recklessness and gross negligence within the substantive law, 368 the alleged distinction between the offences is easy to understand. In contrast, it is arguable that the distinction between recklessness where the defendant manifested ‘utter disregard’ or ‘total indifference’ as opposed to simply taking an ‘unjustifiable risk’ is one which is insufficiently plain. Should a novel offence of culpable homicide be adopted, the lower rungs of the homicide ladder would be contingent not on the agent's alleged awareness of risk, but distinctions that require accepting the notion that it is possible to identify degrees of ‘disregard’ or ‘indifference’.
Obviously, the force of this criticism is diminished if it is accepted that involuntary manslaughter can only be committed by gross negligence
However, far greater inconsistency can be identified when attention is given to the threshold of culpability relied upon within Scots law. As previously acknowledged, culpable homicide requires recklessness, yet the test required differs from that laid down in
Prior to the decision in
Conclusion
As a means with which to reform the current law, culpable homicide offers a number of key benefits. Whereas gross negligence remains dogged by an unhelpfully circular test,
380
culpable homicide is free from abstruse statements which seek to describe the criminality of a defendant's conduct by reference to the very term ‘criminal’.
381
In stressing the need for
When applied to existing cases, a novel offence based on culpable homicide produces innately pleasing results. Exculpating fatal clinical errors where the doctor lacks any blameworthy character trait, the need for conduct which manifests an ‘utter disregard’ ensures that deaths attributable to a reasonable, yet fatally flawed clinical misjudgement does not attract punishment. This stricter test of recklessness continues to ensure that the most morally reprehensible acts of clinical carelessness result in criminal punishment.
Notwithstanding the initial appeal of a ‘test’ grounded in the need for an ‘utter disregard’, 385 culpable homicide is, however, beset by unnecessarily antiquated and overly ‘moralistic language’. 386 References to ‘wicked’, 387 ‘gross’ 388 and ‘utter disregard’, 389 not only fail to provide any real clarity as to the type of conduct that may attract criminal punishment but conflate clinical carelessness attributable to selfishness, with medical conduct which manifests callousness. Despite the impact of wider systemic errors, culpable homicide also fails to provide any direct reference to the need to evaluate the conduct of the physician having regard to ‘all the circumstances’. As such, Scots law perpetuates the marginalisation of wider errors when assessing the criminality of a doctor's departure from accepted standards.
When examined alongside the existing homicide offences, the concerns recently voiced by the Scottish Law Commission regarding ‘cherry picking’ elements from other jurisdictions
390
also ring true. Adopting a novel offence based on culpable homicide results in the crime of involuntary manslaughter comprising of two distinct offences of recklessness, adding unnecessary confusion into a structure already set on ‘rickety foundations’.
391
Introducing an offence that adopts a competing test of recklessness to that approved in
In short, whilst Scots law has been praised for its ‘pragmatic’ approach, 394 in the continuing quest to provide an appropriate solution to the punishment of fatal medical mistakes, pragmatism must not be mistaken for improvement. In order to provide the clarity and fairness sought by both medics and lawyers alike, efforts to reform gross negligence manslaughter in a medical setting must be informed by more than prosecution statistics. We should therefore avoid the temptation to adopt culpable homicide, and focus attention on efforts which do more than replace a contentious and heavily criticised crime, with one which as demonstrated, is comparably flawed.
Footnotes
Acknowledgements
My sincere thanks to Dr Anne Lodge and Dr Cath Crosby, for their invaluable comments on earlier drafts of this article.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.