A Gross Injustice: Reevaluating the Behavioural Standard Required for Gross Negligence Manslaughter in the Context of Medical Mistakes

35 Pages Posted: 3 Sep 2019

See all articles by Madeline Alison

Madeline Alison

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: August 26, 2019

Abstract

In the United Kingdom, where the law of manslaughter is similar to New Zealand, there have been two recent successful prosecutions of doctors for gross negligence manslaughter (GNM) in circumstances some would consider unfair. The convictions of doctors David Sellu and Hadiza Bawa-Garba have garnered significant public attention and provoked debate amongst legal and medical professionals as to the appropriateness of manslaughter prosecutions in the context of medical error. One concern is that these prosecutions failed to consider serious underlying concerns surrounding the tragic deaths of both patients, including hospital underfunding and systems errors. Equally, it is alleged that the prosecutions will have unintended and serious consequences for patient care and safety, including a decrease in error reporting and practitioners' self-reflection. The question, therefore, is how a similar prosecution could be avoided in New Zealand. This essay will analyse why the United Kingdom cases are problematic and how New Zealand law could be changed to address the correct level of culpable behaviour. Ultimately, it will propose that the correct behavioural standard required for a GNM conviction ought to be recklessness.

Keywords: gross negligence manslaughter, doctors, recklessness, medical error

JEL Classification: K00

Suggested Citation

Alison, Madeline, A Gross Injustice: Reevaluating the Behavioural Standard Required for Gross Negligence Manslaughter in the Context of Medical Mistakes (August 26, 2019). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 1/2019. Available at SSRN: https://ssrn.com/abstract=3442705 or http://dx.doi.org/10.2139/ssrn.3442705

Madeline Alison (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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