A gross injustice: Reevaluating the behavioural standard required for gross negligence manslaughter in the context of medical mistakes

Abstract

In the United Kingdom, where the law of manslaughter is similar to New Zealand, there have been two recent successful prosecutions of doctors for gross negligence manslaughter (GNM) in circumstances some would consider unfair. The convictions of doctors David Sellu and Hadiza Bawa-Garba have garnered significant public attention and provoked debate amongst legal and medical professionals as to the appropriateness of manslaughter prosecutions in the context of medical error. One concern is that these prosecutions failed to consider serious underlying concerns surrounding the tragic deaths of both patients, including hospital underfunding and systems errors. Equally, it is alleged that the prosecutions will have unintended and serious consequences for patient care and safety, including a decrease in error reporting and practitioners' self-reflection. The question, therefore, is how a similar prosecution could be avoided in New Zealand. This essay will analyse why the United Kingdom cases are problematic and how New Zealand law could be changed to address the correct level of culpable behaviour. Ultimately, it will propose that the correct behavioural standard required for a GNM conviction ought to be recklessness.