Criminal Negligence and the Incompetent Doctor
![handle is hein.journals/medlr1 and id is 350 raw text is: Medical Law Review, 1, Autumn 1993, pp. 336-349
CRIMINAL NEGLIGENCE AND THE
INCOMPETENT DOCTOR
ALEXANDER McCALL SMITH*
In 1942 the Privy Council quashed the conviction of a doctor who had
caused the death of five children through negligent treatment in the
course of an inoculation programme.' The scale of the disaster was
profound, but, said the Court, it is a grave step to accuse a professional
man of negligence, and such an imputation was not appropriate in the
case in question. Such an attitude towards the dignity of the medical
profession has a somewhat historic ring to it, and doctors, like others
engaged in the practice of a potentially hazardous profession, are hardly
surprised at being blamed for the results of incompetence. Indeed,
recent years have seen a number of highly publicized prosecutions of
doctors for negligent manslaughter, a fact that may be attributable to
the greater willingness of the public prosecution service, rather than the
police, to institute proceedings against members of the medical pro-
fession, or which may reflect a greater social determination to challenge
professional complacency. From the medical point of view, this de-
velopment is worrying, as it adds yet further to the concern which the
profession feels over legal intervention in medical practice. Such con-
cern is not entirely misplaced: criminal liability for negligence is a
contentious issue, and in one view it should not exist at all.2 Criminal
sanctions, it might be argued, are not an appropriate means of dealing
with those who fail to live up to the standards of professional com-
petence required of them. The criminal law should punish those who
cause damage intentionally, or recklessly, but not negligently.
Should negligent doctors be held criminally liable if their negligence
leads to the death of a patient? This question raises fundamental issues
of criminal policy which go to the heart of our notions of when it is
appropriate to punish those whose conduct demonstrates fault rather
than an intention to inflict harm. In one view-which is the view
supported here-negligent conduct simply does not merit criminal
punishment. If, therefore, a doctor is no more than negligent, in the
sense that he has failed to meet a required standard of care, he should
not be the subject of criminal sanction. If, as may more rarely be the
case, recklessness is involved, then there is a morally blameworthy state
*Reader in Law, Faculty of Law, University of Edinburgh.
1 Akerele v. R. [1943] A.C. 255.
2 See, for example, J. Hall, Negligent Behavior should be Excluded from Penal Liability
(1963) 63 Columbia Law Review 632.](ViewImageLocal?handle=hein.journals/medlr1&div=29&collection=&method=preview&ext=.png&size=3)
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Criminal Negligence and the Incompetent Doctor
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