GROSS NEGLIGENCE
MANSLAUGHTER
2019/2020
MEDICAL LAW AND ETHICS I
, Medical errors are usually framed as a civil matter (breach of contract, clinical negligence, etc). Criminal
liability in medical malpractice mainly captures gross negligence manslaughter. Its limited scope means
that criminal cases are rare. But, when they do reach the court, they can attract widespread attention.
For example, the case of Michael Jackson:
Michael Jackson's doctors’ behaviour was considered to be an ‘extreme departure from the standard of
care’ particularly with regard to treating insomnia with a surgical anaesthetic; failing to acquire
informed consent; administering without necessary monitoring; delayed contact with emergency
services; and ineffective resuscitation efforts. He was sentenced to four years imprisonment.
These cases, however, are not straightforward. As Hannah Quirk (2013) points out, "not only do
[doctors] possess professional status and specialist expertise… but they usually have no malicious
intention, have not acted for personal gain and often arouse sympathy." She also notes that
prosecutors, judges and juries all struggle to work out when negligence should be considered gross.
DEFINING MEDICAL MANSLAUGHTER
General definition
R v Bateman [1925] is the starting point. It is not particularly helpful but there is an attempt to define
GNM.
Lord Hewart offered the following definition:
"the negligence of the accused went beyond a mere matter of compensation… and showed such
disregard for the life and safety of others as to amount to a crime."
The 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 on.
R v Adomako [1995] –
Facts: The 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 working on very little sleep. He was convicted of GNM.
Held, by the HoL (per Lord Mackay): Negligence is 'gross' when it is so bad that it should be criminal. It
is for the jury to consider the extent to which the defendant's conduct departed from the proper
standard of care incumbent upon him.
Lord Mackay admitted that the offence involves an element of circularity. However, he reasoned that
an attempt to specify the degree more closely would likely achieve a 'spurious precision'.
The House of Lords, drilling down the elements in Bateman, summarised the requisite elements as
follows:
Part one • A patient has died
• He was owed a duty of care
• The duty of care was breached
MANSLAUGHTER
2019/2020
MEDICAL LAW AND ETHICS I
, Medical errors are usually framed as a civil matter (breach of contract, clinical negligence, etc). Criminal
liability in medical malpractice mainly captures gross negligence manslaughter. Its limited scope means
that criminal cases are rare. But, when they do reach the court, they can attract widespread attention.
For example, the case of Michael Jackson:
Michael Jackson's doctors’ behaviour was considered to be an ‘extreme departure from the standard of
care’ particularly with regard to treating insomnia with a surgical anaesthetic; failing to acquire
informed consent; administering without necessary monitoring; delayed contact with emergency
services; and ineffective resuscitation efforts. He was sentenced to four years imprisonment.
These cases, however, are not straightforward. As Hannah Quirk (2013) points out, "not only do
[doctors] possess professional status and specialist expertise… but they usually have no malicious
intention, have not acted for personal gain and often arouse sympathy." She also notes that
prosecutors, judges and juries all struggle to work out when negligence should be considered gross.
DEFINING MEDICAL MANSLAUGHTER
General definition
R v Bateman [1925] is the starting point. It is not particularly helpful but there is an attempt to define
GNM.
Lord Hewart offered the following definition:
"the negligence of the accused went beyond a mere matter of compensation… and showed such
disregard for the life and safety of others as to amount to a crime."
The 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 on.
R v Adomako [1995] –
Facts: The 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 working on very little sleep. He was convicted of GNM.
Held, by the HoL (per Lord Mackay): Negligence is 'gross' when it is so bad that it should be criminal. It
is for the jury to consider the extent to which the defendant's conduct departed from the proper
standard of care incumbent upon him.
Lord Mackay admitted that the offence involves an element of circularity. However, he reasoned that
an attempt to specify the degree more closely would likely achieve a 'spurious precision'.
The House of Lords, drilling down the elements in Bateman, summarised the requisite elements as
follows:
Part one • A patient has died
• He was owed a duty of care
• The duty of care was breached
