Missed Opportunities in Gross Negligence (Medical) Manslaughter? Seminar

Abstract

" Gross negligence manslaughter is a nebulous offence that imposes liability for accidental homicide, often in socially vital contexts such as healthcare. In two recent cases (Rudling and Rose), the Court of Appeal has subtly shifted the legal test, raising important questions over risk, foresight of death and the standard of fault. It is argued that while a clearer and more culpable threshold has been established, which may be viewed positively, the court’s reasoning creates a problematic incongruity that perpetuates the malaise within the law. Within the medical context, when a patient dies in circumstances where the risk of death is obvious, those treating the patient are at greater of prosecution than in situations where the risk of death was not (superficially) obvious. At first glance, this distinction might be viewed as reasonable; failing a patient who is demonstrably extremely ill may show more serious negligence than failing a patient whose condition does not appear to be life-threatening. However, the nature and scale of the negligence is not necessarily connected to the issue of whether the patient’s risk of dying was obviously serious. The conviction of Dr Bawa-Garba illustrates this concern. This article examines how the Court of Appeal, in attempting to clarify when liability is possible, have created a problematic and irrational element within the legal test for gross negligence manslaughter. "