Medical lobbying wins the day over medical manslaughter

Medical lobbying wins the day over medical manslaughter

September 1995   Women's Health Watch

Doctors have been successful in getting Doug Graham the Minister of Justice, to agree to changing the law on medical manslaughter. Sections 155and 156OftheCrimes Act will be amended so that the test for manslaughter is one of gross rather than ordinary negligence.

The existing Act was reviewed by retired judge, Sir Duncan McMullin, who met with a large number of health professionals, but only a small number of consumer advocates. One of these was Women's Health Action Director, Sandra Coney.

The medical lobby spent over $27,000 on the campaign, retained two QC's and brought three medico-legal experts from overseas. The case of Dr Long, the Hamilton anaesthetist who was recently discharged without his case going to trial, has been skilfully used by the medical lobby to bolster their case that the law is unjust.

The doctors' case

Now Sir Duncan has said that charges should only be laid when there is a 'major departure' from standards of medical care.

He was persuaded by a number of arguments put forward by medical interests:

  • Doctors alleged they were practising defensive medicine because of fear of the law. Some were reluctant to operate on high risk patients.
  • Doctors were failing to keep adequate records when deaths occurred because they fear prosecution.
  • Young doctors told him they would leave New Zealand when they qualified.

It was alleged that there was a risk of a shortage of doctors because overseas doctors will not come to New Zealand.

Flawed and unsubstantiated arguments

There have only been four convictions of health professionals in New Zealand so far, and the Long case shows that the law is not punitive and is in fact working well. The Police will presumably have learned from this case which categories of case are likely to succeed and which are not.

Doctors have argued that they are avoiding high risk cases, yet omission to treat can in itself lead to a charge of manslaughter. Even so, most of the convictions entered so far have not been of high risk cases. Of the four deaths for which doctors and nurses have been convicted, three relate to routine situations:

  • An anaesthetist gave carbon dioxide instead of oxygen to an 11 year old boy during an appendix operation (1982).
  • A radiologist injected the wrong substance into a person's spine during a myelogram (1984).
  • A nurse gave ten times the dose of pain relief to a patient (1994).

In the fourth case, an anaesthetist gave the wrong drug to a woman when she developed breathing difficulties during a gall bladder operation ( 1990). This case went to the -3 Court of Appeal where the judges upheld the decision. No cases have resulted in a prison term.

Cases are currently pending against Dr Keith Ramstead for a number of patient deaths.

The argument that records are being kept is also flawed. The pursuit of a criminal charge would not reIy on written records, but on the findings of a post mortem evidence from witnesses and expert testimony.

Finally, there is no evidence of doctors fleeing from or avoiding New Zealand because of the law. On the contrary, there is an over-supply of doctors. And unlike their counterparts in almost every other country, doctors in New Zealand cannot be sued.

Doctors privileged in New Zealand

This is the difference between New Zealand and other 3 jurisdictions. While doctors in Britain, Australia and Canada might have a higher test for criminal charges, they can be sued, whereas our accident compensation legislation protects doctors from that measure of accountability.

The loss of accountability following any change to the Crimes Act is the major fear of consumer groups. Doctors who kill through errors will be largely exempt from any action except a disciplinary charge. Some medico-legal experts have said that if the threshold for medical manslaughter is raised, then lesser charges should be introduced, such as carelessness leading to death. This is the situation pertaining with road deaths where there are a number of levels of charges.

The law changed for everyone

The law changes proposed by Sir Duncan McMullin will not just affect doctors but all persons carrying out dangerous tasks who have a responsibility for public safety. This includes airline pilots, crane operators, train drivers, the manufacturers of foodstuffs, and even members of the public going about their daily business. Previous convictions under sections 155 and 156 have included:

  • The owner of an unfenced swimming pool into which a child fell.
  • A pilot involved in a mid-air collision while formation flying.
  • A bungy jump operator who did not secure a harness.
  • A driver racing another car.

Sir Duncan has also recommended that Section 145, relating to endangering the public safety short of causing death, the section of the Act under which Peter Mwai was convicted, should be subject to a higher test.

If the law changes go through, all these kinds of cases will be only provable if a major departure of care involving recklessness or gross negligence can be proved.

An amendment to the Act will need to be drafted and hopefully this will go before a Select Committee, at which stage submissions can be made. In the meantime, letters of protest to Mr Doug Graham, Minister of Justice, Parliament Building, would be in order.

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