ABSTRACT
Following the examination of the differences in the French and English approaches to the criminalisation of healthcare negligence, and an illustration of those differences in the contaminated blood scandal, this chapter turns to the question of whether the criminal law is a useful answer to individual healthcare negligence. This chapter argues that as evidence is lacking that the criminal process effectively deters healthcare practitioners from committing errors, the criminalisation of ‘simple’ negligence – which does not reflect a culpable state of mind – should not be followed in England and Wales. Secondly, it suggests an abandonment of the use of the gross negligence test, which suffers from notorious flaws – notably circularity and lack of precision. The chapter argues that attention should instead turn to requiring recklessness as a threshold for liability for manslaughter, and using conduct offences which do not require proof of any harm caused, when this is appropriate. This would help to avoid the effects of moral luck issues on the medical profession, and punish truly wrongful conduct, when causation is otherwise difficult to establish. Finally, the chapter highlights that the use of gross negligence manslaughter in this context contributes to making ‘front-line’ staff more vulnerable to criminal prosecutions, whereas managers and directors are less likely to be the subjects of criminal prosecutions, and it suggests ways in which the accountability of those individuals can be made possible in the healthcare context.
