Authored By: Prisca E.Hayford
University of South Wales
Medical negligence in Anglo-Welsh law spans civil and criminal domains. Civil claims focus on compensation, whereas criminal law exposes healthcare professionals to prosecution for gross negligence manslaughter (GNM). The test in R v Adomako culminates in a jury’s assessment of whether negligence was “gross”. This undefined standard is criticised for vagueness. The prosecution of Dr Bawa-Garba highlighted concerns that doctors are scapegoated for systemic failings. This article argues the current law on GNM undermines fairness and legal uncertainty. Reform is necessary via a statutory definition of “grossness” or a recklessness-based standard.
Introduction
Medical negligence lies at the intersection of tortious liability for compensation and criminal liability for punishment. While civil negligence claims centres on professional standards (Bolam v Friern Hospital Management Committee1, Bolitho v City Hackney Health Authority2), criminal law exposes doctors to GNM. The Adomako test asks whether a breach was “so gross” as to warrant criminal liability3. This reliance on an undefined “grossness” has provoked sustained criticism for vagueness45.
The stakes are high: doctors face imprisonment for errors where systematic NHS failings contribute to death, as seen in Bawa-Garba6. Leaving “grossness” to jury intuition risks scapegoating individuals and undermines the legality principle. This article contends that the current law is unsatisfactory and should be reformed through statutory clarification or a recklessness standard, ensuring punishment is reserved for the most culpable conduct.
The Legal Framework of Medical GNM
The Adomako test requires: (1) a duty of care, (2) breach of that duty, (3) causation of death, (4) the breach creating a risk of death, and (5) whether the negligence was “gross7”. The first three mirror civil negligence; the latter two inject a criminal threshold.
In medicine, a duty is rarely disputed. The controversy lies in the final limb. R v Bateman described gross negligence as a “disregard for the life and safety of others as to amount to a crime8”, but this standard is left to the jury without definition, creating profound uncertainty. It often reflects “a moral knee-jerk reaction” rather than legal principle9.
Judicial Interpretation: Inconsistency in Practice
Case law illustrates the challenges of applying GNM.
In R v Misra and Srivastava, junior doctors failed to diagnose a fatal post-operative infection. The Court of Appeal held the “serious and obvious risk of death” requirement provided sufficient clarity, rejecting claims it violated Article 7 ECHR10. Yet, it reaffirmed that “grossness” was a jury question.
The most controversial case remains R v Bawa-Garba. A junior doctor for a child’s death from sepsis, despite evidence of understaffing, IT system failures, and lack of senior support11. The conviction provoked outrage, with many arguing she was punished for systematic failures.
Conversely, R v Rose demonstrated judicial restraint. An optometrist failure to detect an eye condition led to a child’s death, but the Court of Appeal quashed the conviction, finding the risk of death was not obvious based on the information available to her12. This prevented retrospective criminalisation.
These cases reveal a lottery of liability: conviction may turn on systemic context or a jury’s perception, not just culpability.
Critical Analysis: The Vagueness Problem
The central criticism levelled against the current formulation of GNM is its debilitating vagueness. The term “gross negligence” lacks any precise legal definition in statute or binding common law, granting excessive and unstructured discretion to juries. Professor Andrew Ashworth argues that this doctrinal vagueness fundamentally undermines the principle of legality – a cornerstone of the rule of law – as healthcare professionals cannot reasonably foresee in advance what specific conduct will cross the ambiguous threshold from civil negligence into criminal manslaughter13.
This is exacerbated in healthcare, where outcomes hinge on systemic conditions. Bawa-Garba created a pervasive fear that individuals are punished for broader institutional failures14, potentially discouraging transparency and undermining patient safety.
Furthermore, the civil-criminal overlap is problematic. The same breach may be found in civil liability or manslaughter, based on a jury’s subjective moral judgment. Ormerod and Laird note this creates “uncertain boundaries between mistake, misjudgment, and crime15”.
Comparative models offer clarity. Canada requires objective foresight of bodily harm risk (R v Creighton); The US Model Penal Code demands proof of recklessness: a conscious disregard of a substantial and justifiable risk1617. These are clearer than the opaque notion of “grossness”.
Reform and Developments
The Law Commision’s 2006 Report on Murder, Manslaughter and Infanticide proposed replacing GNM with a statutory offence requiring conduct that falls “far below” standards and creates a “reasonably foreseeable” risk of death18.This provides needed clarity but remains unimplemented.
Post Bawa-Garba, the GMC faced criticism, leading to a more supportive approach acknowledging systemic factors19. The 2018 Williams Review advocated a “just culture” distinguishing honest errors from culpable conduct20.
Without legal reform, prosecutions risk eroding trust and stifling the openness needed to prevent errors.
The Way Forward
Reform should focus on the three areas:
First define “grossness” in statute. A test could require conduct that:
(i) falls far below the standard of a reasonable professional.
(ii)creates a reasonably foreseeable and a serious risk of death.
This provides an objective benchmark, reducing jury discretion.
Second, consider a recklessness standard. This would reserve criminal liability for conscious disregard of a serious and obvious risk, aligning with other serious offences and principles of criminal fault. A counter-argument is that it might be too high, excusing the “inexcusably bad” but oblivious doctor. However, this risk is preferable to the current system, which can condemn conscientious professionals for errors under impossible pressure.
Third, strengthen systemic accountability. Doctors must not be scapegoated for institutional failings. CPS guidelines on prosecuting individuals in complex systems must be applied rigorously, and regulation should focus on organisational learning.
Conclusion
GNM in medicine exposes professionals to criminal punishment for errors in high-pressure environments under a vague test. Reliance on subjective “grossness” undermines legal certainty and fairness. Bawa-Garba shows the risk of scapegoating: Rose highlights the need for foresight-based limits.
Reform is overdue. A statutory definition or recklessness standard will ensure proportionality and protect patients and doctors alike. The law must promote a just culture of safety, not perpetuate a vague regime that sacrifices individuals for systemic failures.
Bibliography
Cases
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QBD) ● Bolitho v City and Hackney Health Authority [1998] AC 232 (HL)
- R v Adomako [1995] 1 AC 171 (HL)
- R v Bateman (1925) 19 Cr App R 8
- R v Bawa-Garba [2016] EWCA Crim 1841
- R v Creighton [1993] 3 SCR 3
- R v Misra and Srivastava [2004] EWCA Crim 2375
- R v Rose [2017] EWCA Crim 1168, [2018] QB 328
Legislation and Government Publications
- American Law Institute, Model Penal Code (1985)
- Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006) ● Sir Norman Williams, Gross Negligence Manslaughter in Healthcare: The Report of a Rapid Policy Review (Department of Health and Social Care 2018).
Books
- Ashworth A, Principles of Criminal Law (9th edn, Oxford University Press 2022) ● Clarkson CMV and Keating HM, Criminal Law: Text and Materials (9th edn, Sweet & Maxwell 2021)
- Ormerod D and Laird K, Smith, Hogan, and Ormerod’s Criminal Law (16th edn, Oxford University Press 2021)
Journal Articles
- Dacre J, ‘The Lessons from Bawa Garba (2018) 361 BMJ k3210
Reports
General Medical Council, Fair to Refer? (GMC 2019)
1 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QBD).
2 Bolitho v City and Hackney Health Authority [1998] AC 232 (HL).
3 R v Adomako [1995] 1 AC 171 (HL).
4 Andrew Ashworth, Principles of Criminal Law (9th edn, Oxford University Press 2022) 254.
5 David Ormerod and Karl Laird, Smith, Hogan, and Ormerod’s Criminal Law (16th edn, Oxford University Press 2021) 711.
6 R v Bawa-Garba [2016] EWCA Crim 1841.
7 Adomako (n 3).
8 R v Bateman (1925) 19 Cr App R 8.
9 CMV Clarkson and HM Keating, Criminal Law:Text and Materials (9th edn, Sweet & Maxwell 2021) 884.
10 R v Misra and Srivastava [2004] EWCA Crim 2375.
11 Bawa-Garba (n 6).
12 R v Rose [2017] EWCA Crim 1168, [2018] QB 328.
13 Ashworth (n 4) 256.
14 Jane Dacre, ‘The Lessons From Bawa-Garba’ (2018) 361 BMJ k3210.
15 Ormerod and Laird (n 2) 713.
16 R v Creighton [1993] 3 SCR 3.
17 American Law Institute, Model Penal Code 2.02 (2)(c) (1985).
18 Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006) para 2.68.19General Medical Council, Fair to Refer? (GMC 2019).
20 Sir Norman Williams, Gross Negligence Manslaughter in Healthcare: The Report of a Rapid Policy Review (Department of Health and Social Care 2018).
