Gross Negligence

Question 1

Defintion:

R v Bateman

Answer 1

Lord Hewart: for liability you need:
GNM = beyond a ‘mere matter of compensation”
- disregard to life and safety that it requires criminal punishment.

Question 2

Definition: Facts

R v Adamako

Answer 2

facts:
Aneasist who come on half way through op - failed to recognise that breathing pipe was dislodge = cardiac arrest and P dying.

Question 3

Definition: analysis

R v Adamako

Answer 3

CA: upheld GNM - the normal DOC standard applies

breach: contribute or cause the death, breach must be grossly Negligent
- sole duty was to ensure P was breathing - failure to do so was more than an inadvertance
- Test: only one to be met:
1. indifference to obvious risk
2. high degree of negligence in avoiding the risk
3. running the risk despite foresight
4. significant inattention to a serious risk

HL - Lord Mckay: upheld conviction: jury to decided conduct depart from proper standard of care that he should be judged criminally:

Not a definition = vague and open ended.

Question 4

Prentice, Sullman and Hollaway

Answer 4

Joint appeal with Adamako: their appeal was allowed

• prentice and Sullman: junior Doc = gave cancer P injection in the wrong place - only suppose to be in spin: but injection on wrong trolley with wrong label
• CA held: they’re far from bad men - their act didn’t amount to GNM it was a matter of monetary compensation

Question 5

Post Adamako: refinements and definitions:
R v Mark
Misra
Sellu

Answer 5

Mark: Foresight was not needed - Adamako held correctly

Misra: Facts: progressive deterioration in Ps condition and not recognising symptoms that required urgent action

• Held: GNM: “failure to protect welfare of P and evert the risk of death”
• Article 7 on fair trial and clear crime offence was not violated, GNM could be more certain it its definition but the hypothetical citizen would know when liability arises

Sellu: sentenced to 2 1/2 years imprisonment
- GNM: “conduct that is exceptionally bad”- judge needs to take care with definition/direction given to jury

Question 6

Post Adamako: refinements and definitions:
Bawa Garba
Rose + Brazier et al (2016)

Answer 6

Bawa-Garba: facts

• P had downsydrome - left 9 hours without care, missed diagnosed by Doc, Doc failed to consult expert and appreciate Ps symptoms
• Convicted of GNM = leads to question on is this the level of badness we’re on about for prosecution to occur

Rose: GNM = ‘serious and obvious risk of death must be present at time of breach’

• failure to conduct test that would reveal a potentially life threatening illness is not GNM
• Brazier: definition is so vague that in this case it Lacks certainty in its application = we see judges not wanting to expose Ds omissions to criminal liability.

Question 7

Sentencing:
OAP 1861: s5
Case: Garg and the GMC

Answer 7

S5 = maximum = life sentence: not alway custodial or lead to loss of job though as seen in Misra

Garg: fact: several breaches and inattention to serious symptoms = all lead to her death = “overwhelming possibility of survival if breaches hadn’t occurred.
- Judge considered all breaches in its totality = crime

GMC: only suspended him for 12 months - didn’t revoke his practicing licence

Question 8

Sentencing and Prosecutions: Articles
Brazier et al 2012
Braizer et al 2016
Braizer and Algharani 
Ashworth

Answer 8

Brazier 2012:

• 3x increase in reported medical deaths
• police investigations doubled
• growing intolerance to accidents as ‘innocent events’ - this is based on the public perception

Brazier 2016:

• prosecution rates are actually low - due to lack of clarity in definition = there is no date and narrative is controlled by media and public perceptions.
• but he Fear shown around this topic should not be dismissed - ‘fear is toxic’
• CPS take on cases that has an element of ‘badness’ : seen in Adamako in comparison with prentice and sullman

B and Algharani:

• prosecution of though who mean well as opposed to those who omit to do anything - people who are actually trying - Adamako and state of NHS atm
• with no definition - we don’t know what we’re prosecuting = can’t be prevented nor detered

Ashworth: prosecution leads to deterrence.

Question 9

Vagueness: Articles
Virgo 
Gardener and Quick 2006 
Toft and Gooderham
Quick 2011

Answer 9

Virgo: Adamako = confusion and uncertainty - Crim law needs to be clearer

Gardner and Quick 2006: its openendness leads to broad interpretation - too much reliance on medical experts to define gross

Toft and Goodreham: there are systematic influence which leads to the offence of GNM = the offence is divorced form the realities of medical practices: the NHS crumbling and Adamako being an example of this

Quick 2011: the experts get confused of the boundaries of civil law and the criminal law - for it to be a criminal offence it needs to more definite.

Question 10

Vagueness: Articles
Samanta and samanta
Laird
Brazier and Alghrani

Answer 10

Samanta: this offence = defensive practices

• GNM doesn’t correspond with aims o f criminal law
• it doesn’t capture the intention and recklessness requirement needed so should criminal law be punishing this offence - Bawa garba example

Laird: links with Braizer and alghrani - not prosecuting those who fail to even attempt to help is unfair - they should be prosecuted also

Brazier and alghrani: Adamako - give object test with subjective application due to the lack of definition

Question 11

Patient Rights

- Brazier 2016

Answer 11

it’s based around DOC - doctors owe a DOC to patients in relation to their treatment and everything - they have right to not be subjected to gross negligence and if they are they should be compensated for this loss of right.

Brazier:

• if we had clarity - we can know what we’re protecting patients against and put measures in place to protect their safety
• the fear culture and defensive practices means patients safety are put at risk and we can’t improve patient experience.

Question 12

Reforms and other route of accountability

• Williams
• Quick
• Brazier and alghrani
• Virgo

Answer 12

Williams: parliamentary action needed to define the offence - this will provide constancy and mutual understanding in prosecution.

Quick: the offence should be abolished completely its too broad for consistency in application of prosecution.

Virgo: remove the hybrid nature of the offence - the DOC and breach side of civil law

Brazier: it should be left to the NHS complaint procedure and GMC to investigate and handle this = that way they can get to the root of the problem in order to minimise reoccurrence and those who need to lose they’re job will.