Speaking on Thursday evening at the President’s Leadership lecture at the Royal College of Physicians and Surgeons of Glasgow, Advocate Neil Mackenzie, a specialist in the areas of professional negligence and industrial disease, outlined the differences between gross negligence manslaughter and involuntary culpable homicide legislation.
In the lecture, Neil MacKenzie said “Gross negligence manslaughter is an English crime while the law is difference in Scotland. The closest equivalent is ‘involuntary culpable homicide’, the starting point of the assessment is whether a person’s actions were criminal. Cases involving Involuntary Culpable Homicide have thus far been far removed from medical care. No doctor has been convicted of this crime in Scotland.”
He continued that to be guilty of this crime, the Crown would require to prove, beyond reasonable doubt, that a patient died because a doctor displayed an utter disregard for the consequences of an act, or a high level of indifference to the consequences, so far as a patient is concerned.
In 2014, the Scottish Parliament consulted on a Bill to reform Culpable Homicide. While it proposed a change to the law to include gross negligence culpable homicide, this related to organisations. Further the consultation has not been acted on. The Scottish Law Commission has recently started a review of Scottish homicide laws, which is likely to take 5 years. There is also the Independent Review of Gross Negligence Manslaughter and Culpable Homicide commissioned by the General Medical Council, which is due to report in 2019.
Mr Mackenzie’s view was that in Scotland, a doctor’s reflections may be recoverable by the courts. Whether they are admitted to evidence, however, is likely to depend on whether they contain contemporaneous factual statements and whether it is fair in all the circumstances to do so. He thought it reasonable to argue that the chilling effect and the potential harm to patients’ care by preventing reflective learning, of making reflections admissible in court make it unfair to admit them in evidence.
A full recording of the lecture is available here.