Medical manslaughter on the rise

MPS medicolegal consultant in Malaysia, Dato Dr NKS Tharmaseelan, looks at changes in the way that doctors are held accountable for their mistakes, and the rise in charges of medical manslaughter

The overwhelming majority of actions for clinical negligence by healthcare professionals have been dealt within the civil courts under the tort of negligence. However, of late there has been an increasing trend towards the criminalisation of fatal medical errors, even resulting in homicide charges.

Our modern day intolerance of mishaps as innocent events has tended to turn medical mistakes resulting in death into tragedies calling for criminal investigation and prosecution. Over the last few decades there has been a steady shift in the way patients, the public, the judiciary and governments view doctors. Once, doctors were held in awe and were viewed as "demigods”. They were held in high esteem, and the public believed that doctors were true to the Hippocratic Oath and always did what was in the best interests of their patients. Lawyers were unwilling to help to sue members of a fellow profession. Even when sued, the judiciary was very benevolent towards doctors.

In Pippin v Sheppard, what appeared to have been required was “the most brutal inattention and neglect” on the part of the doctor before negligence was proved. Thus, there was much reluctance to find doctors guilty of negligence. Over the past few decades the high pedestal on which doctors stood has been slowly crumbling. As patients’ rights movements gained momentum, the dust and clouds thus created have made the “halo” around the doctors less visible. Doctors have even been described as possessing a licence to kill. The recent increase in criminal prosecutions of doctors worldwide reflects society’s changed attitude towards the notion of negligence. More patients are readily questioning their doctors, and are prepared to sue their doctors when things go (or are perceived to go) wrong. Politicians have been known to urge patients to sue their doctors. The legal fraternity is more willing to assist in suing doctors even on flimsy grounds. The judiciary too is not averse in pronouncing custodial sentences as seen in the first case prosecuted under the Private Health & Facilities Services Act in Malaysia. In the UK and other developed countries, the pendulum is slanted towards patients.

The standards for negligence are decided by the courts and when this negligence becomes “gross” and results in death it may warrant criminal prosecution on homicide charges. Thus, into the cauldron of professional occupational hazards facing the doctor, is now the added worry of facing homicide charges. Doctors making medical mistakes resulting in the death of their patients can now face criminal charges and spend time behind bars, in addition to having to face civil suits and being hauled up before the Malaysian Medical Council.

Murder and manslaughter

Homicide is the unlawful killing of a human being. The unlawful killing of a human being without malice or premeditation, either express or implied, is manslaughter whereas in murder there is malicious intent or aforethought. The usual charge for death as a result of medical treatment would be manslaughter as there is no mens rea (guilty mind). However, doctors can be charged for murder if there is malice aforethought, as seen in the case of Dr Harold Shipman. For a doctor to be charged with manslaughter, the level of negligence has been described as gross, extreme or reckless.

To establish criminal liability the facts must be that “the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to account to a crime against the state and deserving punishment”.

The current requirements for involuntary manslaughter to be proved are:

  • The existence of the duty causing death
  • A breach of the duty causing death
  • Gross negligence, which, the court considers, justifies a criminal conviction.

Thus gross negligence must be found to criminally convict the defendant. Proof of any of the following states of mind in the defendant would lead the courts to make a finding of gross negligence:

  • Indifferent and wholly irresponsible disregard to an obvious risk to the patient that the defendant is aware of but to which he makes himself willfully blind
  • Actual foresight of the risk coupled with the determination nevertheless to run it
  • An appreciation of the risk coupled with an intention to avoid it, but with such high degree of negligence in the attempted avoidance that the court considers justifying conviction
  • Inattention or failure to advert to a serious risk which went beyond “mere adventure” in respect of an obvious and important matter which the defendant’s duty demanded he should have addressed

The judge has to decide whether, taking into account the risk of death involved, the doctor’s conduct was so bad that it must have been criminal.

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