 Ynghylch i ddweud y my Neinau Darlanghsiidd Cfg Leichte. Rwyf ni'n gael am hynny'n meddwl yng nghylch y Lai Darlanghsiidd Cfg Leitte. Rwyf ni'n gael ynghylch y Lai Darlanghsiidd Cfg Leitte yn y Darlanghsiidd Polinithig Dynchydig oedd includes y gyfnodau i'w cerddoi, ddeltyliau, ddellunol, dd喝io, ac drwy'n pag maen nhw mai'n nhw'n bryd yn cael ei ddechrau. ac yn ystod o ffondi, ar fynd i'w ffostod y byddol iawn i bryd yn y Llywodraeth. Ac y Llywodraeth y Roedd, yn ymwneud ar gyfer y ddechrau, rwy'n ddiwedd i'w Llywodraeth, ac mae'r ysgolwch yn sgolwch, a'n ei gyd yn ymwneud y Llywodraeth i'w ddiddordeb yn y Llywodraeth, ac yn ymwneud i'r ddiddordeb yn ddiddordeb yn yr hyn sy'n gwybod weithio y Llywodraeth, ..dyn ni'n meddwl llawn i'r ddisgytb 아니u waith y byw'r mod i'r ddweud y meddwl a'r ddweud ein ddiweddau. Mae'n bwysigio'n storio a fydd hyn yn ystod nhw i ddim yn ei fnwysigol... ..yna hwn yn gyfer gwneud i'r ddiweddau yma'r unrhyw o'r bwysigol... ..di fod o'n gwylliant i gjempae yng Nghymru. Many of you will have studied in the course of the world this year now a feature of which has been the creeping expansion of criminal liability but negligence in all sorts ofood fields. One aspect of which, over the last 15 years or so has been the resurrection of prosecutions for close attention and that has taught quite a lot of them directed against medical professionals of one sort or another. woeid yn gweithio gwahanol wedi bod yn gwneud hynny. Ieithwch yn ei wneud o'r drwy'r cwydd'su ar gyfer ac mae'n gweithio'r gwaith i gael y llaw ac'r adresur ac mae'n gweithio'n gyda'r gwaith yn fwyaf. Mae'r gweithio'r gwaith yn gweithio i'r adresur ac mae'n gweithio'n gweithio i'r adresur i'n gweithio i gael gwaith, Ond nid yw'n gwybod ddim yn ei wneud, when I first received Professor Spencer's kind invitation, there were a few butterflies in my stomach. I know it didn't settle down very much on discovering the name of the benefactor for this lecture series, the very distinguished Baron Dr Cornelius Bahadin Dilansew, as we've heard a remarkably talented man with qualifications in dentistry, medicine and law. I hope that the subject of Saffrin's lecture, medicine mistakes and manslaughter would be of interest to the Baron and will be of interest to good selves. Thank you all for coming. Medical mistakes come in many shapes and sizes, but criminal law adopts a one size fits all approach, which to my mind can be a bad fit. For individuals at the sharp end, the stakes are high and stuck, manslaughter prosecution or no action. As we all know, involuntary manslaughter is an amorphous category, which covers a wide range of unintentional but culpable killings. Medical cases are prosecuted with reference to the catch-all concept of gross negligence. Although not unique as an example of objective criminal liability, as we've heard in fact crimes of negligence are on the increase, it's positioned near the apex of serious offences and the absence of a lesser or inco-hate crime renders this an unsatisfactory all-or-nothing scenario, often hinging on moral luck and prosecutorial and expert witness performance. Although relatively rare, such prosecutions have risen markedly over the last 20 years. To the best of my knowledge, since 1925, 65 health professionals have been charged with medical manslaughter, significantly over 50 of these since 1990. Understandably, this has caused much anxiety for healthcare professionals and invited academic inquiry. This lecture will consider how criminal law should deal with fatal medical error. I'll attempt to defend the following thesis, that the current test for liability, gross negligence, is unclear, unprincipled, often unfair and ought to be abolished. I'll argue that subjective reckless manslaughter is the proper place to set the bar for liability. This approach is quite old-fashioned. A more modern approach would see the creation of a specific offence for the healthcare context, perhaps death by dangerous doctoring. But I am against this option. We are living in an era of quite obscene over-criminalisation. As Professor Spencer has recently remarked in the Cambridge Law Journal, the government is, somewhat sadly, big on binge lawmaking. We should resist the temptation to gorge around gross negligence by creating new special offences here. We really do not need a dangerous Docs Act. As Douglas Huzack points out in his recent book called Over-Criminalisation, which I recommend to you, prosecutorial discretion offers the only way of slimming down on criminal liability. He notes there and continuing our food theme that statutes are in effect menus from its prosecutors' chews. In these circumstances, and perhaps these alone, I would prefer a more limited choice set menu, as opposed to a more lavish à la carte. More little chef than Heston Blumenthal, perhaps. I'm not convinced by this bacon and egg ice cream idea. Anyway, before getting into detail, one question could be quickly dealt with. That is, whether criminal law should be involved at all in dealing with medical error. Well, surely not even the staunchest sympathiser of the medical profession would go for a blanket ban on criminalisation, or if so, they would struggle to make a convincing case. Some events will always be beyond the pale and warrant a criminal response. The tough task then is to settle on a morally meaningful and fair framework for culpability. Given that this involves a wide range of conduct from the blatantly reckless to the momentary slip, this is far from easy. In 1952, a Dr Gray was convicted for causing the death of his patient after getting high by setting anaesthetic gases prior to an operation. This is quite different, obviously, from the case of another henistatist, a Dr Falconer, prosecuted in 2006 for a momentary slip. He fatally injected oxygen into the wrong tube, going into the vein, rather than the abdomen of the baby being operated on. These are conceptually distinct, a clear violation versus a momentary slip. They're morally quite different, but legally speaking, both are swept up by the broad and perhaps brutal brush of gross negligence. I think this is wrong, but we don't need a new broom to sweep clean. No new offences, but rather we need to rediscover recklessness, which should be the bottom line. Okay, in terms of a brief history of medical manslaughter, although such prosecutions have increased markedly, lately, they go back a long way. The first known prosecution, or the first I've been able to find, occurred in 1329 in Newcastle, where a practitioner was commended to God. Not as one translation of this form of medieval legal French said, condemned to God, obviously quite different. And grateful to Mr Ian Barker for this information. Gross negligence emerged proper in the 19th century, where we find the first cluster of cases. As I've said, although these cases are very rare, their tendency to challenge the very basis of liability has often led them to the appeal courts and into law reports of our leading authorities on manslaughter. The first of these concerned the conviction of a doctor Bateman for his treatment of his patient during the somewhat difficult delivery of her child. The baby was in the breach position and in performing a manual version to move the baby to the head down position, he mistakenly removed part of her uterus and caused other internal damage causing death. On the appeal and quashing the conviction, the Court of Criminal Appeal formulated the following test of liability. I'm sure you're familiar to you all. In a nutshell, criminal negligence is more than normal negligence, but how much more we don't really know. This was endorsed in 1994 by the House of Lords in the case of Adam Arco. Here, in Leastatist, lost his appeal against conviction after fatally failing to spot a disconnected oxygen tube during a routine eye operation. Lord McKay of Clashburn refined the Bateman test. This formulation, which represents the definition in inverted commas of gross negligence, has been much criticised. It amounts to the following circular test. It is a crime if the jury think it ought to be a crime. Unsurprisingly, perhaps, the next case to end up in the appeal courts, the case of Misera and Suvastavirth, saw gross negligence manslaughter assessed for its compatibility with two human rights of the doctors, namely the Article VI right to a fair trial and the Article VII prohibitions on retrospective criminalisation. Saw what happened in the case of Misera and Suvastavirth. Well, they were senior house officers at Southampton General Hospital. They mismanaged the care of a 31-year-old man to develop toxic shock syndrome after a routine knee operation. This is quite a rare complication, unlike MRSA, for example, as a fairly low mortality rate of about 5%. Specifically, they responded inadequately to obvious signs of infection, race temperature, pulse rate, and failed to chase up blood test results that would have prompted the antibiotic care that would have probably averted disaster. The jury convicted and their appeals were rejected. So, to the human rights arguments, how would these express? As you know, Article VII of the European Convention of Human Rights prohibits retrospective criminalisation. In essence, the doctors argued here that gross negligence is so vague as to fall foul of the certainty requirement of Article VII, that is the principle of legality. Perhaps putting rather crude and somewhat unlikely terms, their argument boiled down to this. Had Dr Misera perhaps in a state of panic picked up the phone and asked the solicitor, listen, I'm losing the plot here. Could you tell me, what is gross negligence? The simple and succinct response might have been, well, it's gross and criminal negligence if the jury can clue it ought to be. It's not that useful, though. Although this wouldn't amount to much by way of chargeable hours with legal advice. The Court of Appeal acknowledged the force of this argument. They recalled Francis Bacon's famous linkage of justice and legal certainty from the 17th century. I think this quote is worth reading out in its entirety. If the trumpet given uncertain sound, who shall prepare himself to the battle? So if the law given uncertain sound, who shall prepare to obey it? It ought therefore to warn before its strikes. Let there be no authority to shed blood, nor let sentence be pronounced in any court upon cases, except according to a known uncertain law. This was dismissed on the basis that Article VII demanded sufficient rather than absolute certainty. And that the degree of vagueness here was acceptable. Of course, numerous legal philosophers have defended vagueness as a necessary feature of law. Timothy Endicott's book of vagueness in law from 2001 is a good recent example. However, returning to Bacon's trumpet metaphor, we're still left with a tune with notes that are difficult to read. Now, we might not expect, or indeed you want, the sort of complex detail and intricate music of the great jazz trumpet at Wynton Marsalis. Does anyone read one of his concerts? Wonderful, but very taxing. But surely we do a little bit more clarity from the criminal law. And in fact, to quote Marsalis on jazz, something I didn't think I'd be doing in a law lecture, he says that the jazz band works best when participation is shaped by intelligent communication. I think we might legitimately wonder whether what we have in terms of gross negligence is sufficiently intelligent and clear communication. Certainty argument, which was rejected, was connected to the argument under Article VI, which requires a fair and public hearing within a reasonable time by independent and impartial tribunal established by law. The jurisprudence surrounding Article VI suggests that a fair hearing implies a reason to the decision, and it was argued, and this was the key point, that as juries here are effectively deciding a question of law, that is the meaning of the offence, the meaning of gross negligence, and because they did not give reasons for their decisions, it has contravened Article VI. Law justice judge in the Court of Appeal did not agree. This is not a question of law but one effect for the decision in the individual case. In terms of this question of law, question of fact point, Andrew Ashworth is surely right, he usually is, in noting that this is a distinction without a difference. It's also one without adequate explanation. After all, it truly is plausible that juries do on occasion accept the conduct was grossly negligent, and they decide against convicting the defendant of manslaughter. In other words, and I suppose this is a mischievous speculation on my part, they do deal with both the question of fact and the question of law. The relatively low conviction rate of around 30% seems to support this. With respect then, the Court of Appeal's conclusion, in the case of Misra, is more than a little optimistic. Indeed, it does nothing more than echo the ffectitious legal advice I noted earlier on. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death and caused it would constitute manslaughter. Again, to my mind, this is not particularly clear or intelligent communication from the law. It doesn't pass the Bacon or Marsalis test. Regrettably, an application for legal appeals at the House of Lords was rejected. This represents a lost opportunity for a possible, albeit rare, declaration of incompatibility which would prompt a rethink about this offence. Therefore, prosecutors, experts, judges and juries are thus left to grapple with the difficult and circular concept. I'll now say some more about why this concept is so troubling philosophically and also in its practical application. The negligent criminal liability has long exercised legal philosophers. Jerome Hall was not exaggerating when he called it an inordinately troublesome area. Hall was responding and rejecting Hart celebrated general theory of guilt in which Hart defended criminal negligence as part of a wider capacity theory of responsibility. Hart famously used the example of a man mending a roof and, without thinking, throws a slate or building materials down onto the street below, causing death without thinking when he turned culpable in advertence. Glanville Williams, on the other hand, had subjectivist misgivings. For him, the search for the mental deficiency here, for example, forgetfulness, amounted to, I quote, an unrewarding exercise in moralism. However, it retains contemporary support. Notably by Andrew Ashworth, and despite its general commitment to subjectivism in criminal law, the Law Commission has given its standard of approval to gross negligence. I'll return to the commission's proposals a little later on. But for Jerome Hall, negligent liability loses sight of the notion of blame, which is the proper foundation of criminal law. In other words, there's not enough men's rare, or perhaps none at all. Now, such arguments are based on a principled objection to its unfairness, particularly as it applies to professionals working in high risk and sometimes unsafe settings. As Alan Norrie notes, grossness depends on the way the conduct is socially and morally perceived, rather than its inherent quality. However, there's been little empirical examination into the relevant perceptions here. Partly prompted by this, I decided to review all known prosecutions since the start of the 20th century. This involved two things. One, a statistical analysis, looking for any trends, themes in the cases, and also conducting interviews with current prosecution service liars at an office of what was then called the Special Casework Directorate. To cut to the chase, my conclusion is that the offence is incapable of clear and objective measurement and ought to be abolished. Now, there may be sufficient cause to call for the complete abolition of gross negligence management. However, it should be said that the arguments presented here rest on research into its application to medical cases. Further research would of course be required to analyse its operation in other settings. But I suspect that it can operate equally harshly for the other professional defendants it mainly applies to, transport drivers, electricians, architects, school teachers, engineers, prism officers. The option of exempting healthcare professionals from gross negligence liability is open to the criticism that it offers unfair protection. Whilst perhaps it's possible to make a special case for healthcare, it should ultimately be unacceptable in a quality of law terms. In reality then, that leaves us with two choices. Downgrade and prosecute more with perhaps a special homicide offence for those who killed whilst performing socially vital functions. Or upgrade and narrow the focus on reckless killing as the proper business of criminal law. As you see in a moment, I prefer the latter option the reckless killing option. Now, what is so wrong with gross negligence? Well, an analysis of the data presents at least five problems which I will now consider in turn. First and, escapeively, gross negligence means gross vagueness. Prosecutors, the prosecutors I interviewed, struggled to pin down their understanding of the term gross, often initially relying on gut instinct. This was partly because, as one explained, rather revealingly, there's no overt criminality there. The notion of gross negligence was understood with reference to synonyms such as extra bad, totally unacceptable, pretty invisible and beyond the pale. In short, there was no obvious or objective system for classifying errors, for classifying mistakes as gross or not gross. This response reflects the definitional difficulty. Note the rather circular return to the word gross at the end of that quote. Here's another example reflecting the difficulty of controversial cases on the cusp. This prosecutor concludes by saying I wouldn't say it was clear and agonised over the decision to prosecute. Some said yes, some said no. In the end, they prosecuted. In the end, the jury acquitted as they often do. Of course, expert evidence will be crucial in such a case and I'll return to this shortly. The second point is about the character of the defendant who is prosecuted with medical mansculter. While the statistics, albeit small, reveal that a disproportionate number of non-white practitioners feature in prosecutions over 50%. This is high given that the number of non-white NHS hospital doctors is estimated to be around 25%. Clearly, this is a particularly troubling finding. How do we explain this? Perhaps we can't, but it may be understood with reference to a number of sociological explanations such as the training and language skills of doctors trained overseas as well as their ability to gain employment and gain superior supervision in better performing hospitals. This involves some speculation that it may be that a high proportion of foreign trained doctors are working in poorly performing hospitals, have received inferior training, possess inadequate language skills, are exercising responsibilities beyond their additive skill and are inadequately supervised and are working in unsafe systems. Of course, a high number may also be related to racist attitudes that creep into the decisions to complain about and consider investigating individuals in the first place. As I said, this is speculation, but it's certainly not implosible. Sadly, given what we know about the role of race, education and social background as powerful determinants of individual success, perhaps it would be surprising if it was not reflected in the breakdown of such statistics, but it hardly instills confidence in a fair system of law and justice. Coupled with the vagueness of the offence, the consequences may be particularly harsh, particularly unfair for some. The third finding suggests there may be a possible geography of prosecution. In other words, unexplained regional variation on the number of prosecutions. There are a greater number of prosecutions in the north, particularly in the north west of England. Now, once the numbers are small and may be explained by normal random distributions, it surely can't be explained by more negligent fatal error in the north, as you'd hope not if you lived there. Rather, could it be a sign of increased prosecutorial confidence in certain regions, certain CPS regions which have, as it were, got home on gross negligence achieved by conviction are to be significant, given the overall low conviction rate. The fourth finding is about expert evidence, or perhaps you can call it expert control. It seems that ultimately the measurement of gross negligence, what does it actually mean, is effectively handed over to relevant medical experts. Prosecutors and thus juries are reliant, perhaps over-reliant, on expert evidence. By and large, this is not the sort of scientific evidence which is currently exercising the Law Commission on consultation paper on this important issue. After all, gross negligence, if it's anything, is a legal term of art, but one which lawyers have devolved to experts, and today are subjective evaluations of where the conduct has crossed the vaguely drawn line of gross negligence. And surprisingly perhaps, expert judgement is itself an uncertain quote as particularly revealing here the prosecutor originally felt the case was gross negligent as two experts disagreed, one said yes, one said no. Then they changed their mind to saying yes, ultimately six months later they reverted to no. Of course, expert evidence is required in such cases, but surely it's inappropriate that it appears to determine rather than just inform the relevant legal questions. Perhaps it's worth pausing and reflecting on possible reasons for this. If you consider the lengthy process by which the criminal justice system considers these cases, it's effectively an exercise in buck passing from the police to the CPS, from the local CPS to the case work directorate where they do high profile, complex work and from the directorate out to selected experts, between experts back to the directorate and throughout this process no-one is comfortable with the task of measuring grossness. Even seemingly clear cases such as mistakenly removing the wrong healthy kidney that's happened down in Cleneddli in 2000 can collapse and it doubts about culpability and causation that creep in during cross examination in that case the man died about four weeks later and he had other complications but I think if you'd ask 100 people on the street why did he die I think he's because he took out his one healthy kidney. Anyway, these are all bad marks against the name of gross negligence and as the fifth funding suggests perhaps this is avoidable given that the next insight which is that in reality some prosecutors at least are researching for subjective thought, really looking for evidence to suggest subjective recklessness. This comment from a prosecutor revealed a preference for evidence of subjective recklessness. This was fairly reflective of the lawyers that I interviewed. He went on to say that the absence of subjective recklessness is a relevant consideration when considering the grossness of the negligence. This is symbolically important as indicating prosecutorial unease with gross negligence. It could also be a practical significance given the sense that some prosecutors are in fact working to a higher standard of recklessness. Before making the case for recklessness let's first consider the case for introducing a special homicide offence for healthcare professionals to go death by dangerous doctoring possibility. There are two obvious objections to creating context-specific crime. First, a defence against the principle of minimalism has too much law on the menu of prosecutors. It almost seems to be the problem in the restaurants that Gordon Ramsay reviews, doesn't it? They've got too much choice on the menu. Maybe there's a lesson there. And secondly, it marginalises defence, reduces its stigma and dilutes its deterrent effect. However, appreciation of different context has led to specific forms of liability in other areas. So if, for example, we accept that vehicular and familial homicide warrant separation from the emotive term manslaughter, why not do the same for deaths caused by careless medical treatment? One option is to creating offence for those who are killed by virtue of misperforming their socially vital work duties. Some argue that a sophisticated, nuanced and fair approach to designing criminal law calls for a context-specific approach to responsibility. So, what's the context in healthcare? Well, we know that medical errors are predictable and routine. Statistics are, if not shocking, then quite striking. UK studies suggest that there are around 850,000 adverse events in NHS hospitals each year. And that about 70,000 deaths are partly contributed, partly caused by such error. In the United States, some of the studies put it a little bit more shockingly and tried to convert this into what it would mean in terms of jumbo jet crashes. Wait for it three every two days. Now, this is not a call for airlines to run our hospitals. But it may be said that the political third way of the public-private partnership might well permit the prospect of a so-called easy hospital. But of course, healthcare is far from easy. And the systematic study of medical error is relatively new. There's no agreed taxonomy of the terms here. The best attempt to doing so has been undertaken by Mary and McCall Smith who have addressed the relationship between medical error and blame and conceptualised these events as errors or violations. What do they mean by this? Well, they say that errors are seldom intentional whereas violations are deliberate deviations from accepted rules, norms or principles. This can also be classified as the difference between doing wrong and wrongdoing. Perhaps it men's rare terms between recklessness and negligence. So, administering the wrong drug or the anaesthetic mistake of Dr Faulkner referred to earlier on are errors as they contrary to the intention to give the correct drug or the correct injection. Whereas a decision to continue with surgery contrary to common practice or poly concern is a violation. They further divide errors into skill based and technical errors. Skill based errors they say are slips and lapses such as the momentary loss of concentration or distraction which they say are not necessarily manifestations of carelessness, of negligence. Technical errors on the other hand are concerned with variability in competency and performance. Now, whilst this is a useful taxonomy of error, there's no evidence that this has gained general acceptance within healthcare, let alone filtering through the prosecutors handling such cases. Truly designing a new criminal offence must attend on a well understood typology of error and its relationship with individual blame. Arguably the study of medical error is at this time insufficiently well developed to support the significant step of creating a new criminal offence. And after all it is for those who argue in favour of liability beneath recklessness to establish medical cases and merit such criminalisation. Yet persuasive arguments have not been forthcoming. Calls for new legislative offences should also be based on clear evidence that existing criminal law is failing to deliver on its aims. So unlike domestic and sexual violence or corporate killing where we've had recent legislative change, there's no such consensus upon which to build a new specific offence or set of offences for healthcare. As Sunford Cardish would say we should first consider the consequences of criminalisation. Would it contribute to the goals of improving patient safety? Would it reduce the number of errors? Well very unlikely. If we know anything from the studies on medical error it's that creating a safety culture depends to a large extent about making people feel safe to talk about and report error. Something which is surely inhibited by the prospective criminal prosecution. Even a morally diluted form of homicide. The easiest existing alternative and my preference to be able to tell would be to prosecute such cases as subjective reckless manslaughter which despite its lack of recent common law authority in this setting in the manslaughter context is unconsentious and well understood. Now it's true we aren't talking about closely connected concepts here. Indeed the legal line drawing between subjective recklessness and those negligence has always been blurring. As Jeremy Horder points out in the 19th century judges were less concerned about observing a neat separation between recklessness and gross negligence which often was a product of more contemporary criminal law scholarship and its pursuit of conceptual clarity. Of course in the most part for most cases using these terms interchangeably would not present problems. The conduct can be properly classed both grossly negligent and subjectively reckless but this will not be true of all cases particularly difficult cases on the cusp. It's here that the wider term gross negligence allows prosecutors to take an unfair punt. Having recklessness as the bottom line would offer some detection against this. Now whilst the higher courts have given their blessing to gross negligence indeed have preferred gross negligence the word recklessness is never far from view. For example returning to a case of Adam Alco where the House of Lords approved gross negligence Lord McCay stated and I quote it's perfectly open to the trial judge to use the word recklessness in its ordinary meaning as part of its position of the law if he deemed it appropriate. This was endorsed by the Court of Appeal in Misery where stating that evidence of the defendant's state of mind is not irrelevant to the issue of gross negligence in fact adding there will often be a critical factor in the decision. Now it's probably no accident that recklessness lurks in the background here. Arguably this reflects judicial reluctance with a leaving liability at the lower level of gross negligence. The Law Commission has also endorsed this what we could call recklessness as a gross negligence position and saying the following recklessness falling short of recklessness indifference can really be regarded as a kind of gross negligence the fact that the defendant saw a risk and wrongly discarded it or stupidly thought it insignificant is compelling evidence of the grossness of his or her negligence. Now as we know the Law Commission has for some time been working on performing involuntary manslaughter and more recently with a more major task of restructuring homicide they deserve congratulations on a difficult job very well done the proposed three tier structure first degree murder, second degree murder and manslaughter by criminal act or by gross negligence is an improvement current position but what about the medical cases I'd be considering this evening well here the commission settle for gross negligence the fact they go one step further and clearly disagree with myself in proposing to abandon reckless killings for manslaughter should be said this is a change from their previous position in 1996 and I'm not at all convinced by their reasoning for this change of heart they cite the support of the Royal Prosecution Service in favour of submerging reckless manslaughter into gross negligence well with respect they would wouldn't they after all it's a prosecution friendly concept it's always worth a pint perhaps they also note that recklessness has proved a particularly problematic term in criminal law they're not wrong we all agree although arguably things should be easier after the abolition of objective or coldwell recklessness in the case of G and somewhat strange to my mind for them to put a lot of faith on the equally if not more troublesome term gross negligence what I think is most striking in the essence of what they're saying here and I encourage you to look at the report yourselves and draw your own conclusions is that whilst these are in their own words properly thought of as reckless killings they say we don't like this difficult evaluative term so let's just deal with these under the wider heading of gross negligence it's a bit like saying that intention is a problem only in criminal law so let's just process all intentional killings as reckless killings well with respect whilst an element of pragmatism is necessary here and compromises are perhaps inevitable this is hardly complied with fair labelling and does not adequately address some of the problems I've explored in this lecture so back to then in 1996 the earlier proposals they proposed to replace subjective reckless manslaughter with reckless killing which would be committed on proof of subjective awareness that the conduct risk death or serious injury so that the professional, the doctor knew, subjective knew at the time of the event the risk of death or serious injury their recent change of heart to ditch recklessness is probably explained by the fear of prosecutors being unable to prove the defendant's subjective awareness at the time of the conduct in question of course as Glanville Williams well put it subjective theory is an ideal imperfectly achievable I think that the fear here is somewhat misplaced it's a bit of a red herring but it's controversially introduced by Will Diplock in the case of Caldwell after all if it is such a problem proving subjective awareness of a risk where is the overwhelming evidence how do we explain the high number of convictions on the basis of subjective reckless criminal damage all convictions lots of convictions for violent defences for assault defences but granted these comparisons may not be exact but the general point I think remains retain some validity without a confession as to state of mind juries and magistrates will always draw inferences from behaviour it happens all the time it's their job if it was reasonable to foresee a risk they would conclude the defendant did foresee the risk this may not wash with what we may call died in the wool subjectivists but it may be the best but how does this apply to the medical cases but in short I think recklessness works the very few cases that lead to conviction are classic subjective recklessness so Dr Walker will continue to remove a larger than expected liver tumor despite warnings that it was too dangerous unusually and tellingly he pleaded guilty Dr Sinner will give a large morphine overdose to relieve the pain of severe arthritis to the patient with kidney failure he refused to read her medical chart which was offered by her husband he apparently waived that opportunity away he closed his mind to the risk he was given a custodial sentence very rare indeed and more recently Dr Ramneth will give a fatal dose of adrenaline against the advice of three colleagues professional violation in Mary McCall Smith's terms so the worry that prosecutors couldn't prove or can't prove subjective awareness of risk is I think an exaggerator and as you have seen some prosecutors are in fact doing that very same thing searching for evidence of subjective fault however the problem of recklessness remains of course it's not a straightforward concept much ink, academic and judicial has been spilled trying to define it despite the best attempts of amongst others Glanville Williams and Anthony Duff the courts have not settled still are settled on a coherent doctrine the speeches of the law lords in the case of Jeeve I think you'll agree that they testify to that point Glanville Williams famously redefined recklessness to require that the risk would have been obvious to the defendant had he paused to think Anthony Duff offers the test of practical indifference that is I couldn't care less building on this more recently Victor Tagros defines recklessness as where the individual has failed to fulfil his duty of investigating the risks was willfully blinded himself to the existence of the risks I think summarising you could legitimately say the following where a doctor has special knowledge of certain procedures carrying with him certain risks and fails to investigate those risks without justification criminal responsibility can be properly attributed on the basis of recklessness I think this strikes the right balance in terms of its breadth it should satisfy those unwilling to trust strict subjectivism that may be open to challenge that leaves us with the standard lacuna case what do you mean by this well a case where a doctor is aware of the risk aims to avoid it that gets that wrong and in getting it wrong in making a mistake we return to gross negligence leaving the jury the vague term and a difficult value judgement I've tried to demonstrate the significant problems with this concept to my mind these are the cases the very cases that should fall below the criminal line and the two obvious arguments against this do not appear that strong first no one has persuasively argued that more prosecutions in the health setting would be a good thing that is that it would improve patient safety secondly a skeptic my question whether the shift from gross negligence to recklessness would make any difference in practice well to my mind it would be surprising very surprising if this did not result in less prosecution and I think this should be a good thing I'll conclude by summarising what I've tried to argue here this evening medical errors including fatal errors are an inevitable feature the delivery of healthcare to the criminal law it's not a question of should be shouldn't we but rather where is the appropriate place to set the bar for liability gross negligence is too vague despite surviving the challenge in misery the issue of its human rights compatibility is not settled there is no clarion call from the law's trumpet it can and has been questioned on a philosophical level that is there is insufficient moral blame especially for homicide its breadth leads to unfairness lumping together a case of slips and lapses with those of clear recklessness for me it clearly fails the test of fair labelling but what is more empirical examination reveals further reservations prosecutorial and expert evaluations show that the term is too broad and too open to subjective opinions this translates into particular harshness for those exposed to prosecution by virtue of their risky yet socially vital work often at the mercy of moral luck what I would say is why continue to struggle with the vagueness and vagueries of interpreting gross negligence when there is no consensus but what it actually means and whether it should be a crime inlaying cold wealth arrest or a case of G Lord Stein said this the sureest test of a new legal rule is not whether it satisfies a team of magicians but how it performs in the real world well with a conviction rate of around 30% very low for homicide and with quite a few successful appeals against the conviction gross negligence performs badly in the jury room to my mind the argument for the bottom line should be recklessness now this term is not without its difficulties and I wouldn't dream of claiming that I've cracked the code in this lecture but I think the performance energies should be channeled at revising recklessness criminal law should be a last and rare resort we should limit the set menu of prosecutors to one course recklessness well I've returned to the food theme I think a rumbling has replaced the pasta flies in my stomach with a pleasant cross with dinner to follow I think I'll stop there thank you for listening