Gross Negligence Manslaughter In The Healthcare Sector

Can a doctor, hospital or healthcare administrator be charged with the manslaughter of a patient who dies in their care?

By law, yes - under the offence of gross negligence manslaughter.

The principles of gross negligence manslaughter apply equally in healthcare as they do in other instances of gross negligence manslaughter such as fatal road traffic accidents. For gross negligence manslaughter in the medical context, the diagnosis or treatment must have involved a very high degree of negligence involving a risk or likelihood of substantial personal injury to others.

Yet as far as we are aware there have been no prosecutions in the healthcare sector for gross negligence manslaughter in Ireland. Compare this with the UK, where although the threshold for gross negligence manslaughter is higher than in Ireland, 47 healthcare professionals (including 37 doctors) have been prosecuted since 1994. Twenty-three of these healthcare professionals were convicted, and only four convictions were overturned on appeal. A recent UK Government report on gross negligence manslaughter in the healthcare sector referred to this level of prosecutions as "rare" and the level of convictions as "rarer still". This raises the question as to why the law on gross negligence manslaughter is not being enforced in Ireland.

ORDINARY MEDICAL NEGLIGENCE

A doctor or hospital may be liable in negligence where it is established that they deviated from a generally approved practice in such a way that no doctor of the same specialisation and skill would have followed the same approach if he/she were taking the ordinary care required by a person of his/her skill and qualifications. A doctor will not escape liability if he/she followed a generally approved medical practice if the practice had inherent defects which should have been obvious to anyone giving the issue proper consideration.

A negligence action can also be taken against a hospital or healthcare administrator on the basis that the hospital practice or procedure was defective. In such circumstances, the hospital administrator is treated as if he/she had personally carried out the treatment or diagnosis.

GROSS NEGLIGENCE MANSLAUGHTER - THE PRINCIPLES

Unsurprisingly, the threshold for gross negligence manslaughter is much higher than that required for a civil claim:

Negligence in this context means a failure to observe such a course of conduct as experience shows to be necessary if the risk of injury to others is to be...