Content area
Full text
"It would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck." Baron Pollock (1859) 1
A doctor who makes a "bad enough" medical error to cause the death of a patient can be prosecuted for criminal negligence manslaughter, 2 3 but prosecutions were rare until the 1990s. When we surveyed cases previously, the numbers of doctors charged had increased during the period 1990-2005, although few were convicted. 4 Those who were convicted were rarely imprisoned, and if they were, sentences were generally short. Negligent acts, however reckless, that have non-fatal consequences, are not crimes in English law. In France, by contrast, claimants can invoke criminal proceedings for involuntary harm short of death, and not necessarily as a consequence of recklessness. 5 Some have suggested that a similar approach be adopted in England. 6
Three new factors will alter the relationship between medicine and criminal law in England and Wales. Firstly, the Court of Appeal's ruling that a sentence of two years' imprisonment imposed on a surgeon who pleaded guilty to manslaughter was "not manifestly excessive." 7 Secondly, revisions to the law on corporate manslaughter. 8 Thirdly, recommendations of the Francis and Berwick reports that reckless or wilful misconduct causing harm short of death should be prosecuted. 9 10
The Appeal Court decision recognised that before the implementation of the Criminal Justice Act 2003, "medical gross negligence cases were regarded as requiring levels of punishment at a more modest level than those appropriate to different forms of the offence of manslaughter by gross negligence." 7 However, the new sentencing tariff should, in the court's view, reflect "the fatal consequences of a criminal act" even when applied to medical manslaughter.
Where practitioners wilfully neglect their patients or are reckless, they deserve punishment. 11 However, manslaughter charges can also follow unintentional medical errors of the sort that in one circumstance cause no harm but in a similar circumstance prove fatal. 12 For example, giving 10 times too much...