Hong Kong Med J 2021 Aug;27(4):240–1 | Epub 20 Jul 2021
© Hong Kong Academy of Medicine. CC BY-NC-ND 4.0
EDITORIAL
Medical manslaughter: the role of hindsight
Gilberto KK Leung, FHKAM (Surgery), LLM
Department of Surgery, LKS Faculty of Medicine, The University of Hong Kong, Hong Kong
Corresponding author: Prof Gilberto KK Leung (gilberto@hku.hk)
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A 46-year-old woman died after receiving a bacteria-contaminated
blood product at a beauty clinic in
Hong Kong in 2012. The clinic owner, the technician
concerned, and the doctor who administered the
transfusion were convicted of gross negligence
manslaughter in the now-infamous “DR case”. 1 2
Whilst few, if any, would condone the conduct of the
individuals responsible, the principles underpinning
the criminal conviction of the third defendant warrant our
attention.
Gross negligence manslaughter is a form
of involuntary manslaughter where the degree
of negligence is so “reprehensible”, so “truly
exceptionally bad” that it amounts to a crime. A
key element of the offence is that it must have been
reasonably foreseeable that the breach of duty of care
in question carried a “serious and obvious risk of
death” and had indeed caused death. The applicable
legal test is an objective one. 2
As its name implies, the objective test does
not look into the accused’s own state of mind but
asks whether a reasonably competent doctor in the
accused’s position would have foreseen a “serious and
obvious risk of death”. An affirmative answer would
point to liability subject to the other requirements being
met.
The way the objective test operates depends on
the kind of information the hypothetical “reasonable
doctor” possesses. Should the hypothetical doctor
in the context of fatal medical treatment consider
only information known to the accused at the
time of giving the treatment, ie, looking at the
situation prospectively? Or should the hypothetical
doctor benefit from hindsight and also take
into consideration information that eventually
transpired, ie, a retrospective exercise? A fine point
of technicality, perhaps, but a pivotal one at that.
In the English case of Rose, an optometrist
failed to examine a young boy’s fundi adequately
and missed his papilloedema.3 He later died of
hydrocephalus, and the optometrist was convicted
of gross negligence manslaughter. Her conviction
was quashed on appeal on the ground that although
she should have examined the child properly and
discovered papilloedema, since she did not, she could
not have reasonably foreseen a serious and obvious
risk of death, and neither would a hypothetical
optometrist in the same state of “ignorance”. And
this, the Court of Appeal found, would not suffice for the conviction.
A similar argument also overturned the
conviction of a restaurant chef from Lancashire,
United Kingdom, who served a fatal takeaway meal
containing peanuts to a customer who had declared
peanuts allergy.4 Although the chef should have
known about the allergy, he did not know because of
a communication breakdown within the restaurant,
and the conviction could not stand.
A curious effect of the above line of reasoning
is that the less one does and the less one knows, the
less culpable one seems to become in the eyes of the
criminal law. One may also argue that a reasonably
competent optometrist/chef would not have made
those mistakes in the first place. But the court in Rose
was not saying the optometrist was not wrong; she
was just not criminally wrong, and the appropriate
sanctions should come from professional regulatory
bodies instead. Indeed, the optometrist was found
unfit to practise by the General Optical Council and
suspended for 9 months.
The objective test is thus a prospective one
according to these recent cases which, when applied
in a blood transfusion case, would not take into
account things that would have been known to the
doctor but for the failure to check for contamination,
nor the fact that the patient later died of septicaemia.
Instead, it would ask whether a hypothetical
reasonable doctor, not knowing or suspecting that
the blood product was contaminated, would have
reasonably foreseen a serious and obvious risk of
death at the moment of giving it. If answered in the
negative, there can be no manslaughter conviction.
How the objective test was applied in the
“DR case” cannot be gleaned from the published
judgement, and this author is not second-guessing
the wisdom of the court as the case has its unique
facts and considerations. What can be said is
that the objective test, if applied in a retrospective
manner, would have engaged a degree of hindsight
few of us would enjoy when being the one in the dock,
and that the very reason why the original conviction
in Rose was found unsafe was that the trial judge had
erred in directing the jury to apply the objective test
retrospectively.
Some would no doubt, and quite rightly,
say that basic human conscience and professional
duties require doctors to always check for safety
and a failure to do so ought to invite at least some kind of punishment had the failure resulted in
patient death. Two issues follow. First, how much
checking is enough? That a system is in place to
check for contamination? A technician had signed
off the treatment? The technician’s credentials? That
he actually did his job? Second, should a failure to
do all or indeed any one of the above be treated
as a potential crime? How often do we check that
everything we are given to give is bacteria-free?
Should there be a distinction between oversight and conscious violation of established safety
rules? Is failing to check manslaughter?
Rose is of course not binding in Hong Kong,
and being a Court of Appeal decision it has not
changed the law although it does offer a nuanced application of the objective test. What we, as healthcare professionals, need to stay
mindful and critical of, though, is how the offence of
and the legal test for gross negligence manslaughter
are to be invoked, articulated, and applied in
this locality. Criminal liability is founded on the
concepts of reasonable foreseeability and moral
blameworthiness, and whilst hindsight is invaluable
for learning, it is a lousy tool for determining whether
and when a human error in medicine should be met with the consequence of years behind bars. It may
not be up to us to decide what the law is or how it
works, but we can surely decide that the debate be
continued, here and elsewhere.5
Author contributions
The author is solely responsible for drafting of the manuscript, approved the final version for publication, and takes
responsibility for its accuracy and integrity.
Conflicts of interest
The author has disclosed no conflicts of interest.
References
1. HKSAR v Chow Heung Wing Stephen & Ors [2018] HKCFI 60
2. HKSAR v Mak Wan Ling [2020] HKCFI 3069
3. Mullock A. Gross negligence (medical) manslaughter and the puzzling implications of negligent ignorance: Rose v
R [2017] EWCA Crim 1168. Med Law Rev 2018;26:346-56. Crossref
4. R v Kuddus [2019] EWCA Crim 837
5. Leung GK. Medical manslaughter in Hong Kong—how, why, and why not. Hong Kong Med J 2018;24:384-90. Crossref