Abstract
This thesis provides a critical examination of the legal response to death as a result of fatal medical errors in England and Wales. Notwithstanding significant academic attention, as currently interpreted, the offence of gross negligence manslaughter fails to appropriately distinguish between the clinician who is indifferent to the welfare of their patient, and the healthcare provider whose error is attributable to incompetence which, whilst blameworthy, due to the absence of any negative character trait towards their patient, does not warrant criminal punishment.Although the crime of gross negligence has long proven problematic, with the use of negligence as a form of mens rea and the lack of clarity surrounding constituent elements of the offence attracting significant criticism, recent appellate developments have further obfuscated the ingredients of this contentious crime. Blurring the boundaries of culpability between recklessness and gross negligence, and exacerbating existing flaws, at present the crime continues to represent the nadir of judicial development of the common law.
This work examines the development of gross negligence manslaughter, focusing on how from the inception of the crime to the present day, the difficulties of determining what transforms mere negligence into criminal negligence have continued to plague the courts. Distracting from any meaningful examination of when criminal punishment is warranted, the impact of this sustained lack of clarity on the medical profession is evaluated, with a critical analysis of how recent judicial efforts to (seemingly) shield clinicians from criminal punishment have transformed the crime beyond recognition, with troubling consequences.
This thesis seeks to propose a theoretically defensible approach to the criminalisation of fatal medical errors; therefore, in order to determine when any healthcare provider who kills their patient ought to attract punishment, the seminal theories of choice and character are subject to critical evaluation. In addition to the contentious role of moral luck within the present crime, attention is also given to the wider principles of criminal responsibility, particularly fair labelling. Several of the leading proposals for reform of gross negligence within a medical setting are examined, before a novel approach, which builds on existing efforts, is advocated. It is argued that an amended test of recklessness offers the most plausible solution for the criminalisation of fatal medical errors, and ensures that only clinicians who are deserving of punishment face penal sanctions.
| Date of Award | 24 Jun 2026 |
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| Original language | English |
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| Supervisor | Anne Lodge (Supervisor), Catherine Crosby (Supervisor) & Helen Howard (Supervisor) |