Criminal Law Analysis R V Adomako

Introduction

As a patient, the hospital is a place where they get well and better in the angelic hands of physicians. What happens when the doctors who are supposed to diagnose and treat patient’s illnesses performs their obligations below the required standard leading to death? What recourse does the patient’s family have against the doctor and the hospital? At what point can a doctor be found to have committed a crime if they are found to have been negligent? Well, the above questions were at the centre of Adomako’s trial and subsequent appeals.

The names and citations of the various Law Reports in which the case was found were:-

[1995] 1 AC 171, [1994] 3 WLR 288, [1994] 3 All ER 79, 99 Cr App R 362, HL

The names of the courts in which the case was heard at the earlier stages of the proceedings, the dates of those decisions and the names of the judges in those courts were as follows:-

The case was first heard by the trial court where the jury convicted Mr Adomako of manslaughter by a majority of 11 to 1 on 20th day of May 1993.

The case was then heard by the Court of Appeal Criminal Division and judgment issued on 23rd day of November 1993 by Lord Taylor of Gosforth C.J., Henry, and Blofeld J.J. sitting.

The name of the highest court in which the case was next heard was House of Lords; the names of the judges in the case were The Lord chancellor, Lord Keith of Kinkel, Lord Goff of Chievely, Lord Browne-Wilkinson, and Lord Woolf on the following dates, 30th day of June 1994

A summary of the facts is as follows: -

The appellant was an anaesthetist at Mayday Hospital, Croydon on 4 January 1987 when an eye surgery was carried out on the patient. During the surgery, the appellant took over from another anaesthetist when an alarm went off indicating that something was wrong with the patient. Although the appellant responded by checking the equipment he did not notice or remedy a disconnection of the endotracheal tube that had occurred prompting the alarm. As a result the patient suffered a cardiac arrest causing his demise. At trial, the prosecution accused the appellant of gross negligence by failing to notice or take steps to remedy the disconnection despite all the signs both from the equipment and the patient that something was amiss. However, the appellant conceded that he was negligent but his conduct did not amount to a crime. The trial court had the task of determining whether his conduct was criminal and it convicted him of manslaughter on the ground that his actions amount to gross negligence amounting to a crime. He appealed the decision of the trial court and the appeal was dismissed by the Court of Appeal Criminal Division. This prompted the subsequent appeal to the House of Lords which upheld the decision of the Court of Appeal to dismiss the appeal.

A summary of the highest court’s decision is as follows:-

The House of Lords held, dismissing the appeal, that the case satisfied the requirements for an offence of gross negligence manslaughter. The court found that the appellant’s incompetence was so bad that it deserved to have criminal consequences, a criminal conviction for gross negligence manslaughter.

The highest court’s reasoning in the decision (ratio dicidendi) is:-

Gross negligence manslaughter must a four stage test. First, the defendant must have owed the victim a duty of care. Second, the defendant must breach that duty. Third, it is the breach of the duty that caused contributed to the death of the victim. Lastly, taking into account the risk of death involved, the conduct of the defendant was bad in all the circumstances as to amount to a criminal act or omission. Using this four stage test, the House of Lord found that I was correct to uphold the conviction of the appellant for gross negligence manslaughter.

A critical analysis of the decision of the highest court, stating its merits and demerits, is expressed as follows:-

The House of Lords decision is significant in many ways to different stakeholders in the medical industry and other areas involving professionals. Clearly, the case provides a basis for victim’s families to get justice in instances where a person dies in the hospital as a result of gross negligence of a doctor. In essence, the case is a benchmark for the standard of care that doctors should maintain in the care of patients to avoid any negligent deaths. It is a step in the right direction towards the preservation of life and maintenance of high quality standards in the medical profession. The four stage test set forth by Lord Mackay ensures that doctors are only punished where their actions or omissions go beyond negligence to entail gross conduct that any reasonable professional would deem to be worthy of a crime. Doctors undergo rigorous training that takes years before they can handle patients, hence they are expected to live to the high standard of care when diagnosing, treating and caring for patients.

However, the decision is a nightmare to doctors who interact with patients daily because they have to maintain the highest standards. Doctors may feel that the decision was too harsh and that certain human oversights are inevitable and a person should not be punished for such mishaps. Further, the decision may cause doctors to constantly live in fear of breaching the duty of care for gross negligence hence they will second guess their decisions. This may affect the productivity of doctors or other professionals who are at risk of being prosecuted for gross negligence manslaughter. Interestingly, words like gross or reckless has not been adequately addressed in the case or even previous cases hence making it controversial how juries decide which actions are grossly negligent or reckless. As a result juries now appear to be deciding issues of law by determining what constitutes gross negligence bordering criminal behaviour. The decision simply adds to the confusion regarding the ingredients of the offence.

The following academic journal articles were reviewed:-

1. Macintosh David the author of Medical manslaughter: Resolving circularity reviews a number of cases including R v Adomako and traces the court’s interpretation of gross negligence and recklessness since the 19th century and its significance in the medical partition. In particular the authors notes as follows:

   “…….the crux of the problem with the present law is that it is both circular and difficult to understand, given the vague and tautologous character of ‘truly exceptionally bad’. There is an alternative to articulating the offence of gross negligence manslaughter in terms of the breach of a duty of care and that is to do so on the basis of a betrayal of trust, based on the fiduciary relationship between doctor and patient. The fiduciary is a feature of equity, a species of law that is distinct from the common law but good law nevertheless.”

2. Oliver Quick in his article ‘Prosecuting ‘gross’ medical negligence: Manslaughter, discretion, and the crown prosecution service. ., published in the Journal of law and Society considers the underlying prosecutorial discretion factors in the prosecution of gross negligence manslaughter cases involving health care professionals. Indicatively, he notes as follows:

   “A decade on from Adomako then, prosecutors, judges, and juries are left grappling with this difficult and loosely defined concept….the jurisprudence surrounding Article 6 of the ECHR suggests that a fair hearing implies a reasoned decision, and it was argued that as juries here are effectively deciding a principle of law and do not give reasons for their decisions, this contravened Article 6.”

3. Body D.I.B. has written on ‘Civil and criminal actions against anesthetists’ in the British Journal of Anaesthesia, a topic that is related to the above case.

Conclusion

I find David Macintosh’s work quite interesting because he has a unique perspective on the how the courts should handle the offence of gross negligence manslaughter. The author addresses the problems associated with the offence from Bateman, Andrews, Adomako, Misra and Srivastava to Zaman. In almost all these cases the common thread is that the courts have indeed recognised that there is great difficulty in determining negligence which warranting criminal liability and that which does not. This situation is not made any better by the lack of definition of the word ‘gross’ to distinguish between gross negligence and negligence. Further, he refers to the use of the words truly exceptionally bad as used in Misra and Srivastava to denote the degree of misconduct required to cross the threshold of criminal liability. I concur with David’s proposal that a new concept of betrayal of trust should be introduced into the elements of the offence to do away with the test of an act or omission being so bad that it deserves criminal sanction. Incorporating betrayal of trust into the elements of the offence would clear the ambiguity that is currently associated with the offence and make decision-making by jurors straightforward by simply understanding the concept of betrayal and non-betrayal of trust between patients and their doctors.

Bibliography

Table of Cases

• Andrews v DPP [1937] AC 576 (HL)
• R v Adomako [1994] 3 WLR 288
• R v Bateman [1927] 19 Cr App R 8
• R v Misra and Srivastava [2004] EWCA Crim 2375
• R. v Zaman [2017] EWCA Crim 1783

Journals

Macintosh D, Medical manslaughter: Resolving circularity. (2019)Journal of Paediatric Surgery 54.7 15, 15.

Quick O, Prosecuting ‘gross’ medical negligence: Manslaughter, discretion, and the crown prosecution service. (2006) Journal of Law and Society 33.3: 421,450.

Body DIB, Civil and criminal actions against anaesthetists. (1994) BJA: British Journal of Anaesthesia 73.1: 83-92