GROSS NEGLIGENCE MANSLAUGHTER (GNM)
What role does the criminal process play in regulating an individual's medical practice in the
context of fatal medical errors?
Medical errors are usually framed as a civil matter (breach of contract or clinical negligence for
example). GNM cases are very rare, but when they do reach the court, they attract widespread
attention. The current law is vague and the components of this offence are not sufficiently clarified.
The case of Michael Jackson is an example of GNM in action. His doctors' behaviour was considered to
be an extreme departure from the standard of care and he was sentenced to 4 years (quite harsh).
There was a sequence of dramatic failures which meant he fell well below the standard of care
expected of him as a doctor.
GNM is so open to interpretation that it covers conduct which;
Causes outrage
Deserves to be punished
Causes concern
This may be considered part of the problem with the offence - it is difficult to quantify and predict what
conduct will result in GNM. Fairness and certainty are seemingly absent which is not what is expected
of the law.
DEFINING MEDICAL MANSLAUGHTER
The below case is not particularly helpful but there is an attempt to define gross negligence
manslaughter.
R v Bateman (1925)
During the delivery of the patient's child, the doctor eventually resorted to an operation which required
'considerable force'. The delivered child was dead. During the operation the doctor accidentally
removed a portion of the patient's uterus. Although initially refusing to do so, the doctor transferred her
to an infirmary where she was found unfit to undergo an operation and died two days later.
Doctor was convicted of gross negligence manslaughter. Lord Hewitt CJ offered a definition which
consisted of the following;
Negligence went beyond a mere matter of compensation; which
Shows such disregard for the life and safety of others; as to
Amount to a crime against the state; and
The conduct is deserving of punishment.
Issue with this is that these are bold terms that have not been qualified further. How far beyond a mere
matter of compensation must one go? What constitutes 'such disregard'? There is a complete lack of
certainty in this case but it forms the foundation of GNM on which later cases build upon.
R v Adomako [1995]
Appellant was an anaesthetist in charge of a patient during an eye operation. During the operation an
oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to
obvious signs of disconnection. An assistant was meant to be present but never showed up and
Adomako was going off very little sleep. The jury convicted him of gross negligence manslaughter.
, The Court of Appeal dismissed his appeal. They certified the question to the House of Lords asking
whether in cases of manslaughter by criminal negligence that didn't involve driving whether it was
sufficient direction to the jury to adopt the gross negligence test set out in R v Bateman (1925) without
reference to the test of recklessness as defined in R v Lawrence [1982] or as adapted to the
circumstances of the case?
In summary, the requisite elements are as follows;
Patient has died
Duty of care
Breach of duty (Bolam)
Causation (R v Sellu)
Breach amounts to 'gross negligence'
WHEN DOES A BREACH AMOUNT TO 'GROSS' NEGLIGENCE?
This is a question for the jury. The jury must consider whether the conduct is deserving of criminal
liability.
R v Prentice, R v Sullman, R v Adomako, R v Holloway [1994]
This is the consolidated Court of Appeal hearing that was held prior to Adomako's appeal hearing in the
House of Lords. All of the below were convicted of GNM by breach of duty at trial.
Prentice and Sullman were junior doctors who were carrying out injections on a youth. The
drug had ended up on the wrong trolley but neither doctor checked the labels on the box or the
syringes. A substance was erroneously injected into his spine (should only be injected into a
vein), as a result of which he died.
Adomako was an anaesthetist who failed to notice or act upon his patient's pipe disconnection.
Holloway was a qualified electrician who fitted a central heating programmer in a house and a
person was electrocuted as a result.
All appeals were allowed other than that of Adomako. They set out the requirements of GNM as listed
above and felt that only the anaesthetist met that criteria. The Court of Appeal agreed that Prentice and
Sullman are far from being bad men; you are good men who contrary to your normal behaviour on this
occasion were guilty of momentary recklessness. They also established that the jury had been properly
directed.
Adomako's failure on the other hand to complete his 'sole duty' was more than mere inadvertence and
constituted gross negligence of the degree necessary for manslaughter.
This provides some clarity on the uncertainty which was not addressed by the House of Lords in
Adomako (below). This decision was interesting because its difficult to determine why Adomako was
treated differently. The different outcomes are due to the fact that the offence is too vague, the courts
defined 'gross' in different ways.
In the above case the courts refined the test for gross negligence manslaughter and based it on;
Indifference to obvious risk; or
High degree of negligence in attempting to avoid the risk; or
Running of risk despite foresight; or
Significant inattention to serious risk.
What role does the criminal process play in regulating an individual's medical practice in the
context of fatal medical errors?
Medical errors are usually framed as a civil matter (breach of contract or clinical negligence for
example). GNM cases are very rare, but when they do reach the court, they attract widespread
attention. The current law is vague and the components of this offence are not sufficiently clarified.
The case of Michael Jackson is an example of GNM in action. His doctors' behaviour was considered to
be an extreme departure from the standard of care and he was sentenced to 4 years (quite harsh).
There was a sequence of dramatic failures which meant he fell well below the standard of care
expected of him as a doctor.
GNM is so open to interpretation that it covers conduct which;
Causes outrage
Deserves to be punished
Causes concern
This may be considered part of the problem with the offence - it is difficult to quantify and predict what
conduct will result in GNM. Fairness and certainty are seemingly absent which is not what is expected
of the law.
DEFINING MEDICAL MANSLAUGHTER
The below case is not particularly helpful but there is an attempt to define gross negligence
manslaughter.
R v Bateman (1925)
During the delivery of the patient's child, the doctor eventually resorted to an operation which required
'considerable force'. The delivered child was dead. During the operation the doctor accidentally
removed a portion of the patient's uterus. Although initially refusing to do so, the doctor transferred her
to an infirmary where she was found unfit to undergo an operation and died two days later.
Doctor was convicted of gross negligence manslaughter. Lord Hewitt CJ offered a definition which
consisted of the following;
Negligence went beyond a mere matter of compensation; which
Shows such disregard for the life and safety of others; as to
Amount to a crime against the state; and
The conduct is deserving of punishment.
Issue with this is that these are bold terms that have not been qualified further. How far beyond a mere
matter of compensation must one go? What constitutes 'such disregard'? There is a complete lack of
certainty in this case but it forms the foundation of GNM on which later cases build upon.
R v Adomako [1995]
Appellant was an anaesthetist in charge of a patient during an eye operation. During the operation an
oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to
obvious signs of disconnection. An assistant was meant to be present but never showed up and
Adomako was going off very little sleep. The jury convicted him of gross negligence manslaughter.
, The Court of Appeal dismissed his appeal. They certified the question to the House of Lords asking
whether in cases of manslaughter by criminal negligence that didn't involve driving whether it was
sufficient direction to the jury to adopt the gross negligence test set out in R v Bateman (1925) without
reference to the test of recklessness as defined in R v Lawrence [1982] or as adapted to the
circumstances of the case?
In summary, the requisite elements are as follows;
Patient has died
Duty of care
Breach of duty (Bolam)
Causation (R v Sellu)
Breach amounts to 'gross negligence'
WHEN DOES A BREACH AMOUNT TO 'GROSS' NEGLIGENCE?
This is a question for the jury. The jury must consider whether the conduct is deserving of criminal
liability.
R v Prentice, R v Sullman, R v Adomako, R v Holloway [1994]
This is the consolidated Court of Appeal hearing that was held prior to Adomako's appeal hearing in the
House of Lords. All of the below were convicted of GNM by breach of duty at trial.
Prentice and Sullman were junior doctors who were carrying out injections on a youth. The
drug had ended up on the wrong trolley but neither doctor checked the labels on the box or the
syringes. A substance was erroneously injected into his spine (should only be injected into a
vein), as a result of which he died.
Adomako was an anaesthetist who failed to notice or act upon his patient's pipe disconnection.
Holloway was a qualified electrician who fitted a central heating programmer in a house and a
person was electrocuted as a result.
All appeals were allowed other than that of Adomako. They set out the requirements of GNM as listed
above and felt that only the anaesthetist met that criteria. The Court of Appeal agreed that Prentice and
Sullman are far from being bad men; you are good men who contrary to your normal behaviour on this
occasion were guilty of momentary recklessness. They also established that the jury had been properly
directed.
Adomako's failure on the other hand to complete his 'sole duty' was more than mere inadvertence and
constituted gross negligence of the degree necessary for manslaughter.
This provides some clarity on the uncertainty which was not addressed by the House of Lords in
Adomako (below). This decision was interesting because its difficult to determine why Adomako was
treated differently. The different outcomes are due to the fact that the offence is too vague, the courts
defined 'gross' in different ways.
In the above case the courts refined the test for gross negligence manslaughter and based it on;
Indifference to obvious risk; or
High degree of negligence in attempting to avoid the risk; or
Running of risk despite foresight; or
Significant inattention to serious risk.
