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Gross Negligence Manslaughter and the Medical Profession
  • May 9, 2024
  • Latest Journal

 Is the Test Fit for Purpose? Is a new approach needed?

by Rakesh Bhardwaj
Consultant Surgeon
Article one of three

Manslaughter can be committed in one of three ways. First, from conduct taking the form of an unlawful act involving a danger of some harm that results in death. Second, killing with the intent for murder but where a partial defence applies, namely loss of control, diminished responsibility or killing pursuant to a suicide pact. Third, from conduct that was grossly negligent.

The offence of Gross Negligence Manslaughter (GNM) is committed where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. GNM is a common law offence and is indictable. It can occur in a wide variety of circumstances where a duty of care exists; most frequently noted in healthcare settings, in the workplace, or in custody. In the healthcare setting it applies to any healthcare professional; for the purpose of this work we shall refer to Doctors primarily. This dissertation aims to critically analyse the current law on GNM, analyse how we have arrived at this test, evaluate its deficiencies, examine alternatives and suggest reform.

The “test” of GNM has developed as a result of incremental judicial development over the last century and despite refinements there is a continuing failure to crystallise certain elements of the test. The ingredients of the offence were authoritatively set out in the leading case of R v Adomako [1995] 1 AC 171 by Lord Mackay of Clashfern LC. 1    

This article begins by exploring the evolution of GNM into its current format through case law. We look at the leading case of Bateman, and the movement towards recklessness as a fault term. We then examine the return to GNM through Adomako.

Lord Hewart CJ opined that doctors: “owe a duty to use caution in undertaking treatment… not exact the highest standard, or a very high standard, nor should they be content with a very low standard. The law requires a fair and reasonable standard of care and competence”.2

The criminalisation of a medical act or omission is central to this offence. Most claims for medical malpractice are brought in the tort of negligence, within the civil arena. In this the issue will be whether the defendant was in breach of a duty of care and whether the breach caused damage to the patient. Financial compensation is often sought for the damage. What differentiates it from GNM is the death of a patient is involved and this death was caused by the negligent breach of the duty of care. In order for a prosecution to proceed successfully the defendant’s conduct must have departed from the proper standards of care to such an extent that it was deemed to have been judged to be criminal.

We still have no coherent means of knowing what satisfies the test. A common law test must be comprehensive enough to safeguard the public against criminal doctors who deserve punishment, but it must be subtle enough to differentiate the fleeting act of unintended errors that result in death from deliberate acts of criminality. This leads us to explore why there is continued criticism directed toward the test and why it creates such uncertainty.

Setting the Scene: Bateman
Prosecution of doctors is not a modern phenomenon. The first known prosecution occurred in 1329 in Newcastle where a practitioner was “commended” to God.3 There is a standard that a doctor should adhere to; this standard should be higher than that of the “common man” as the doctor is seen as “professing special knowledge or skill”.4 The word “negligence” is not clear as it has two meanings. In its “non-legal” sense it could align itself with carelessness, indifference, disregard and even recklessness. In its “legal” sense it implies that a duty of care has been breached.5 Whilst a treating doctor would be expected to have duty of care to a patient, within the law of involuntary manslaughter this was not stated in legal terms until Bateman.6 This was particularly of importance where culpability for omissions may occur.

Until Bateman case law to determine manslaughter by either recklessness or gross negligence had not been addressed comprehensively. Prior to Bateman there was still considerable deference shown toward the medical profession. In 1807 an Accoucher was charged with manslaughter. Lord Ellenborough directed the jury that to substantiate the charge, and to be guilty of criminal misconduct,7 this must only arise from the grossest ignorance or the most criminal misconduct. Lord Aitkin in Andrews v DPP opined: “here the word “criminal” in any attempt to define a crime is perhaps not the most helpful; but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence”.8 In Noakes a customer was given a wrong bottle of medicine containing aconite, a poison, and they died.9 Although Erle CJ left the case to the jury, he gave them specific direction that the case was not sufficiently strong to warrant a finding that the prisoner was guilty on a charge of felony. Similarly in Crick an individual, who was not a regular practitioner, had administered a patient a dangerous medicine that produced death.10 Pollock CB stated: “If the prisoner had been a medical man I should have recommended you to take the most favourable view of his conduct, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck”.

Such deferential judicial attitudes made it difficult to assign criminal degrees of negligence to medical errors. Unhelpfully the Privy Council in Akerele said these cases rightly stressed the care that should be taken before imputing criminal negligence to a professional man acting in the course of his profession.11

Prior to the twentieth century the law regarding gross negligence was at best vague and developed through common law. Early case law seemed to hint that to cause death by any lack of care whatsoever would amount to manslaughter. It was not until the nineteenth century that judges began to use the language of “Gross Negligence”.12 This was to differentiate the negligence required for civil liability and established that a higher degree of fault ought to be necessary to incur criminal liability for manslaughter.

R v Bateman in 1925 helped to formulate the test for liability, with the Court of Appeal confirming that the appropriate test was one based on gross negligence, as opposed to any lesser degree of carelessness.13 The issue central to this case was whether the level of negligence amounted to gross negligence enough to warrant criminal liability. Bateman, a qualified medical practitioner, was convicted of GNM arising from the delivery of a child. During the operation, which required “considerable force” there was subsequent internal damage and part of the uterus was removed. There was an initial refusal to transfer the patient to an infirmary, but when she was later transferred she was not fit for corrective surgery and died two days later. The Court of Appeal considered the jury’s instructions concerning the level of negligence warranting criminal liability for manslaughter. In doing so the Court held that in order to establish criminal liability for manslaughter by negligence it must be proven that:

1. The doctor owed a duty of care to his patient

2. This duty was not discharged

3. This failure to discharge his duty caused death

4. A gross level of negligence to satisfy the mens rea element of the crime.

The Court thus distinguished between civil liability warranting compensation pursuant to assessment of damage and criminal liability that required a mens rea concerning the degree of negligence. Put another way in a civil action, if it is proved that a doctor fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard; the extent of his liability depends not on the degree of negligence but the amount of damage done. Satisfying the mens rea in this formulation is fraught with difficulty. Whilst for a criminal act a mens rea is essential there are exceptions. Crimes of strict liability such as negligence or tortious intent do not require a mens rea. What is different about the Bateman formulation is that the word “Gross” is incorporated. But negligence that is gross does not necessarily equate to a mens rea being evident. This definitional difficulty adds confusion. Focusing on this distinction between negligence giving rise to compensation and negligence constituting a crime, the Court of Appeal found the judge in the first instance misdirected the jury and quashed the guilty verdict.

The Law Commission raised some concern over the wording in R v Bateman.14 Whilst the defendant owed a “duty…to take care” this precise extent of this duty was not clear. It may be more appropriate to replace the phrase “to take care” with “to use diligence, care,  knowledge, skill and caution…”.

Central to the formulation the aim was to distinguish a criminal act from a civil wrong. Here Bateman failed to provide clarity:

“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”.15

In other words the jury should convict the accused of a crime if his or her behaviour is criminal – the definition is circular. Though Bateman has never been overruled it lost at its outset the opportunity to provide the clarity that was required.

Recklessness: Oscillating between Subjectivism and Objectivism
To illustrate the significance of recklessness as a fault term we must consider some cases outside the medical environment. In Andrews v DPP the House of Lords upheld a conviction for manslaughter.16 The appellant drove a van above the speed limit and overtook another car. As he did so he struck a pedestrian and killed him. In keeping with Bateman and irrespective of historical epithets used such as “criminal”, “gross”, ‘wicked”, Lord Atkin opined that “the facts must be such that in the opinion of the jury the negligence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State and conduct deserving punishment”.17 In addition Lord Atkin affirmed the conclusion in R v Bateman: “ for the purpose of criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is  established”. His use of epithets was no less cautious: “ Probably of all the epithets that can be applied “reckless” most nearly covers the case”. Using the word “recklessness” in this context described a high degree or “gross” negligence.

Recklessness equates to causing harm through unreasonable risk taking. In the hierarchy of mens rea, recklessness is second only to intention, but not as culpable. The questions that arise with a reckless endeavour would include the following: Was there the conscious taking of an unreasonable risk? Did one close one’s mind to risk? Did one fail to think about a serious and obvious risk of harm? What if there was an inability to foresee risk? Each of these issues has been addressed through case law and merit further exploration.

The subjectivist view is seen in R v Cunningham where the appellant ripped a gas meter from the wall in order to steal the money in the meter.19 However gas seeped through to the neighbouring property where his future mother-in law was poisoned. In Cunningham Byrne J explained recklessness meant that the “the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it”. The significance of this raises two issues. First, it is only required that the accused foresaw that there was a risk. Second, it was not necessary to demonstrate whether the risk is obvious or would have been seen by a reasonable person. This latter point is demonstrated in Stephenson, where the schizophrenic defendant lit a fire in a haystack, destroying it. Because his illness made him not aware that there was a risk to the haystack, even if it was obvious and foreseeable to others, he was deemed not Cunningham reckless.

As Cunningham recklessness became the predominant fault term adopted there emerged a distinction between reckless conduct and negligent conduct: recklessness required foresight of risk whereas negligence covered inadvertent conduct.  This subtle difference was illustrated in Andrews v DPP where “the accused may have appreciated the risk and intended to avoid it and yet have shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction”. This markedly differs form a subjectivist approach: “having foreseen the risk but to have determined nevertheless to run it”.

In R v Stone and Dobinson the defendants, S and D, were a couple who took in the victim, S’s sister, as a lodger.20 S had severe disabilities, being partially deaf and blind. D had learning difficulties. Whilst staying with the defendants, the victim became unable to care for herself, having long struggled with mental health issues and obsession about her weight. D made some efforts to care for her, bringing her food and washing her with the help of a neighbour. However her attempts were not sustained and inadequate, and the victim passed away. The defendants were charged with manslaughter, based upon recklessness, and convicted. In the appeal the conviction was upheld. Geoffrey Lane LJ based his formulation of recklessness on Andrews v DPP but with one subtle difference (which relates to a different state of mind). He stated:“ the defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.”

Regrettably in this context the word “indifferent” does not clarify whether the defendant has perceived the risk in question, or whether he is indifferent about something, which he is not aware.

Theorists have oscillated between “subjectivism”, where the defendant foresaw the risk and nevertheless continued to act; and “objectivism” where liability should be expanded to include those whose conduct causes harm to others regardless of whether they saw a risk of harm occurring, but where the reasonable person would have foreseen such a risk. Whilst the Cunningham test is subjective, it is also objective in the assessment of whether the risk was a reasonable one to run in the circumstances. There are inherent flaws with the Cunningham test. First if a defendant failed to consider the effect of his actions, yet was morally culpable, he could not be deemed criminally reckless. This leads onto the second criticism, whether the test is too narrow in its application. In this the test is solely based upon whether the accused foresaw the risk of harm. If they did not then the defendant would not be Cunningham reckless. In this case liability would only lie if the offence were committed negligently.

What of “objective recklessness”? In Metropolitan Police Commissioner v Caldwell the appellant had worked in a hotel and during this employment developed a grudge against the hotel owner.21 The appellant then became intoxicated and started a fire on the hotel premises. There were 10 guests sleeping in the hotel but as the fire was extinguished quickly no one came to harm. The defendant was convicted under section 1(2) of the Criminal Damage Act 1971 (CDA) (aggravated criminal damage with intention to endanger life or recklessness as to the endangerment of life).22 Whilst the jury were instructed that self-induced drunkenness was no defence under the CDA, the defendant appealed. The grounds for the appeal was that he was so intoxicated that he had not contemplated the risk or possibility of endangering life due to his actions, and thus had neither intended to endanger life, nor had he been reckless as to that risk. The case introduced “Caldwell recklessness” which stated defendants were Caldwell reckless if:

1. They were aware of a risk; OR

2. There was an obvious and serious risk AND they failed to consider whether or not there was a risk.

Lord Diplock’s leading judgment had changed the definition of recklessness from the subjective “Cunningham” recklessness to an objective test, based upon the state of mind of the “ordinary prudent individual”. This could inevitably lead to outcomes being subject to social value judgement and abolish consistency in its application. Caldwell recklessness was however subsequently limited to offences of criminal damage, reckless manslaughter and reckless driving.

In order for a charge of manslaughter to be sustained there must be knowledge of a risk to life of another – this was the basis for the appeal in R v Lawrence (Stephen).23 The “Lawrence Direction” followed: this direction was suitable for the statutory offence of causing death by reckless driving contrary to section 1 of the Road Traffic Act 197224, but not for manslaughter. Manslaughter based on reckless driving required something more - the use of a vehicle as a weapon or a definition of reckless, which involves recognition by the accused of risk to his victim.

Put another way R v Lawrence left us with assessing three possible situations regarding risk:

1. “The defendant knows of the risk of physical harm to another person and goes on to take that risk.

2. The accused takes no thought of the risk of physical harm to a person and would not have altered his conduct if he taken thought of it. He does not care whether there is harm because he is indifferent to the risk of harm – the “ I could not care less” person

3. The accused takes no thought to the possibility of a risk and would not have altered his conduct if he had taken thought because the circumstances as he believes them to be do not give rise to the risk – “it never crossed my mind”.25

Whilst all these circumstances placed the defendant guilty of the statutory offence of causing death by dangerous driving the case of manslaughter is more serious and thus applying the above principle the accused in category (3) would not be guilty of gross negligence set out in Andrews v DPP and which is necessary to constitute manslaughter.26 Thus the “Lawrence Direction” set the basis for a culpability threshold being applied. In other words the House of Lords held that the test of recklessness was the same for reckless driving as for criminal damage, but used the words based on an “obvious and serious” risk (as opposed to an “obvious risk” in Caldwell).

In R v Seymour the court considered the relationship between the offences of manslaughter and causing death by reckless driving.27 Their Lordships held that the law applicable to both these offences was the same. Watkins LJ opined:

“we are of the view that is no longer necessary or helpful to make reference to compensation and negligence. The Lawrence direction on recklessness is comprehensive and of general application to all offences”.

The end of Caldwell recklessness was based on R v G and another [2003] where two boys, aged 11 and 12 years set fire to paper near rubbish bins next to a shop.28 The subsequent fire damage to the shop was extensive. The children gave no thought to the fire spreading. Lord Bingham modified Lord Diplock’s definition to take account of the concept of “mischievous direction”. In essence the Diplock test of “obviousness” would operate unfairly to young children if they were held to the same standard as adults. Further arguments against objectivism had been demonstrated earlier in Elliot v C, where a 14-year-old schoolgirl of low intelligence burned down a garden shed.29 The court followed Caldwell and cited that the risk of damage would be obvious to a reasonably prudent person. The major criticism that the test faced was that the focus of the test was based upon the defendant’s conduct not mental state. As the defendant had not realised the risk due to her poor understanding of risk, the test was deemed to be flawed.

Some have argued that R v G and another [2003] should not have cast aside the Caldwell test too readily and simply modified it. This was not a suitable path for Lord Rodger who stated that Lord Diplock’s:

“speech has proved notoriously difficult to interpret and those difficulties would have not ended with any refinements… Indeed those refinements themselves would almost inevitably have prompted further questions and appeals”.

Thus having had Caldwell overturned, subjective recklessness determined the fault level for death from negligence by breach of duty. It was not quite Cunningham recklessness, but stated in the Draft Criminal Code:

“ A person acts recklessly with respect to – (i) a circumstance when he is aware of a risk that exists or will exist; (ii) a result when he is aware of a risk that will occur; and it is, in the circumstances known to him, unreasonable to take the risk”.30

This definition is open to criticism too. Duff criticised it being “too wide, in counting every conscious and unreasonable risk-taker as “reckless” and too narrow in requiring advertence to the risk”31

The Adomako formulation
R v Prentice, R v Sullman, R v Adomako and R v Holloway were listed together and in The Court of Appeal seriatim. The questions that arose surrounded these cases concerned the true legal basis of involuntary manslaughter. The first three cases involved doctors, the fourth an electrician. Drs Prentice and Sullman were junior doctors carrying out injections on a youth. A substance was erroneously injected into his spine, as a result of which he died.  Dr Adomako was the anaesthetist during an eye operation on a patient. He had taken over from another anaesthetist part way through an operation. At some point the tube from the ventilator supplying oxygen to the patient had become disconnected. The defendant failed to notice the disconnection for six minutes and the patients suffered a cardiac arrest and died. At trial the defendant admitted he had been negligent, was convicted of manslaughter of the patient by breach of duty; but this is not the precise issue at hand. The ratio was which of either Gross Negligence or Recklessness was the correct legal test for death by breach of duty.

Lord Williams of Mostyn QC acted for the defendant in the Court of Appeal. It was suggested that the offence of manslaughter should have the characteristics of clarity, certainty, intellectual coherence and general applicability, which was not present in the initial judgement. There was ambiguity by which the jury were invited to determine guilt or innocence in relation to the offence of manslaughter. He also argued that recklessness was the appropriate fault term as recklessness in this context might import wilfully shutting one’s mind to the known risk. He also alluded to Lord Atkin’s speech in Bateman, where although gross negligence was the test, the proposition of recklessness was also supported. He also indicated that a mental element of the crime was required and was concerned that a conviction based upon negligence alone may have cast aside the mens rea too readily, as the grossness of an act of negligence did not depend on intent.

The affirmation for abandoning recklessness applicable to motor manslaughter in favour of gross negligence for manslaughter by breach of duty was fourfold. First the Caldwell/ Lawrence direction (which was applicable at that time) was held to be too broad in its definition. Second the Caldwell/ Lawrence direction was applicable in situations where the defendant had created the risk; Adomako had not created the risk, his actions were that of omission. Third “the obvious risk” proposed in the Model Direction alluded to the risk being obvious to the ‘ordinary prudent individual’. In this circumstance Adomako was perceived as an expert in his field and he would have appreciated risk that the ordinary person would have not. Fourth was with regard to how Dr Adomako had foreseen the risk and tried to eliminate it in an incompetent manner. A person is not covered by the Model Direction unless he realised he had not entirely eliminated the risk before acting.

From this the “Adomako Test” was developed in the Court of Appeal, the outline from Taylor LCJ was as follows:

1. There is a duty of care between the defendant and deceased

2. There is a breach of that duty

3. The breach causes or significantly contributes to the death of the victim

4. The breach should be characterised as “gross negligence” and thus a crime.

Having been dismissed in the Court of Appeal, Adomako was subsequently addressed in the House of Lords. The ingredients of the offence were authoritatively set out by Lord Mackay of Clashfern LC in the House of Lords who opined.33:

"In my opinion, the law as stated in these two authorities Bateman (1925) 19 Cr. App. R. 8 and Andrews v DPP [1937] AC 576 is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordships' house, it remains the most authoritative statement of the present law, which I have been able to find and it has not been departed from. On this basis, in my opinion the ordinary principles 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." 34

We were left with a common law test that ostensibly reaffirmed the framework set out in Bateman, overruled recklessness and set the standard for convictions in manslaughter where a duty of care applied. It was however open to challenge and with further cases the test was further complicated and deemed far from being comprehensive.

In this article we have summarised how the common law has evolved into its current formulation with the test set out in Adomako. The next article examines the flaws in the test and addresses some of the old problems that have caused concern in deciding what is the correct formulation for negligence through breach of duty.

(I would like to acknowledge both Dr Robson and Dr Swift from the Academic Department of Law, Northumbria University in their guidance with these articles. This work was submitted to Northumbria University as part of a thesis submitted for the award of LLM)

1. R v Adomako [1994] 3 WLR 288 – see p18 for a fuller description of the ingredients of the offence

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

3. Quick O, ‘Medicine, Mistakes and Manslaughter: A Criminal Combination?’ Cambridge Law Journal, 69(1), March 2010, pp186-203

4. The opinion of McNair J in Bolam v Friern Hospital Management Committee, [1957] 1 W.L.R 582

5. Lewthwaite, J. and Hodgson, J., 2001. Law Of Torts. 3rd ed. London: Blackstone., pp.66-77

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

7. R v Williamson (1807) 3 Car & P 635; 172 ER 579

8. Andrews v DPP

9. R v Noakes [1866] EngR 2; (1886) 4 F & F 920

10.  R v Crick [1859] EngR 97; 1 F&F 519

11. Akerele v R [1943] AC 255, PC

12. Percy Winfield “The History of Negligence in the Law of Torts”, Law Quarterly Review 42 (1926): 184-201, at 185- “Not until the nineteenth century” can the law of negligence be said to have taken coherent shape.

13. R v Bateman [1925] 19 Cr App R 8

14. Law Commission Consultation Paper No 135, Involuntary manslaughter (1994). Section 20

15. R v Bateman [1925] 19 Cr App R 8

16. Andrews v DPP [1937] AC 576

17. Andrews v DPP [1937] AC 576

18. R v Bateman [1925] 19 Cr App R 8

19. R v Cunningham [1957] 2 QB 396

20. R v Stone and Dobinson [1977] 1 QB 354

21. MPC v Caldwell [1982] AC 341

22. Criminal Damage Act 1971 s.1 (2) provides that a person is guilty of an offence if without lawful excuse, they destroy or damage property, belonging to them self or another, with intent or being reckless as to destroying or damaging property and with intent or being reckless as to endangering life.

23. R v Lawrence (Stephen) [1982] AC 510 House of Lords

24. Road Traffic Act 1972 s1: “A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.”

25. R v Lawrence (Stephen) [1982] AC 510 House of Lords

26. Andrews v DPP [1937] AC 576

27. R v Seymour [1983] 2 AC 493

28. R v G and another [2003] UKHL 50

29. Eliot v C [1983] 1 WLR 939

30. The Law Commission Consultation Paper (No. 122) Legislating the Criminal Code. Offences against the Person and General Principles.

31. R A Duff, “Recklessness” [1980] Criminal Law Review 282 at 290-291

32. R v Prentice, Sullman, Adomako, Holloway. (1994) 98 Cr. App R. 262

33. R v Adomako [1994] 3 WLR 288 House of Lords, [1995] 1 AC 171

34. R v Adomako [1994] 3 WLR 288 House of Lords, [1995] 1 AC 171