One of the worst case scenarios following a systematic breakdown in safety and quality controls is the death of a patient in unexpected and tragic circumstances when there are subsequent allegations of medical manslaughter.

Recent cases

Recent cases of medical manslaughter to hit the media include the charge of involuntary manslaughter against Dr Jayant Patel.

Dr Jayant Patel, a Bundaberg Hospital surgeon in the period between 2003 and 2005, was convicted on 30 June 2010 of three counts of manslaughter and two counts of grievous bodily harm and according to media reports sentenced to seven years jail (subject to parole). The decision is likely to be appealed by Dr Patel.

The Crown case was that Dr Patel was criminally negligent and that his actions resulted in the death of or grievous bodily harm to his patients. Dr Patel is likely to be charged over other patient deaths and injuries.

The significant failures of Dr Patel's treatment were poor, inadequate or wrong diagnosis of patients, performing operations beyond his surgical ability and the capacity of a regional Hospital to support and failing to transfer patients to tertiary Hospitals for a higher level of post operative care.

Dr Patel's defence team had argued that the crown case was wrong in law, as the Queensland Criminal Code implicitly recognised that surgical or medical treatment undertaken with consent was lawful. However, that argument has little substance as Dr Patel had concealed from everyone that he had restrictions imposed on his medical license by the Medical Board of Oregon (USA). Dr Patel did not disclose those restrictions to his patients pre-operatively so any consent obtained from a patient will be vitiated by his fraud.

The first recorded manslaughter conviction in Australia was in 1843 when Dr Valentine accidentally sent a bottle containing laudanum (an opium preparation) to a patient instead of another medicine resulting in the death of the patient.

Another recent high profile medical manslaughter case is the one in the US against Dr Conrad Murray arising from the death of Michael Jackson.

It is alleged that while serving as Jackson's physician, Murray provided the singer with a lethal cocktail of sedatives, including dangerous amounts of the anaesthetic propofol. This anaesthetic is only supposed to be administered by an anaesthesia professional in a medical setting. Murray previously pleaded not guilty to all charges, which carry a penalty of up to four years in prison.

What constitutes medical manslaughter?

Each State and Territory of Australia has an Act setting out crimes. In New South Wales, section 18 of the Crimes Act 1900 (NSW) defines murder and manslaughter as follows:

'(1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

(b) Every other punishable homicide shall be taken to be manslaughter.

(2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.'

The leading case in Australia involving negligent manslaughter was decided in the Supreme Court of Victoria, the case of Nydam v R [1977] VR 430. The court held that in order to establish manslaughter by negligence it is necessary to show an intent to do the act which in fact caused the death of the victim. The accused must fall short of the standard of care required of a reasonable man in the circumstances and there must be a high degree of risk or likelihood of the occurrence of death or serious bodily harm if the standard of care was not observed. It is not necessary for the accused to be conscious of the likelihood of his act causing death or serious bodily harm to the victim or persons placed in a similar relationship as the victim was to the accused.

The leading English case of R v Adomako [1994] 3 All ER 79, involved the death of a patient during a routine eye operation. A mechanical breathing tube became disconnected and this was unnoticed and not remedied by the doctors. The House of Lords held that a defendant was properly convicted of involuntary manslaughter by breach of duty if the jury were directed, and had found, that the defendant was in breach of a duty of care towards the victim who died, that breach of duty caused the death of the victim, and that the breach of duty was characterised as gross negligence and therefore a crime. Whether the defendant's breach of duty amounted to gross negligence depended on the seriousness of the breach of duty committed by the defendant in all the circumstances in which he was placed when it occurred and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury's judgement to a criminal act or omission.

The possibility of a medical manslaughter charge against clinicians is a strong reminder for the necessity of adherence to safety and quality measures in health care settings.

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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.