Medical Manslaughter 1994
June 1994 Women's Health Watch
When cardio-thoracic surgeon Keith Ramstead was charged with four counts of manslaughter arising out of patient deaths at Christchurch Hospital the reaction from doctors was immediate. They were appalled that Ramstead would face manslaughter charges.
For some time doctors have been campaigning to have the clauses of the Crimes Act relating to manslaughter by health professionals dropped or a lesser charge enacted for doctors. They say that in other jurisdictions such as Britain and Canada, 'gross negligence' rather than 'mere negligence' needs to be proved.
Although there have only been a handful of such charges laid, and only four convictions so far this century, the Minister of Justice has been strenuously lobbied to change the law.
Various options are open to the Minister
- Do nothing
- Enact a special statutory offence regime for medical practitioners.
- Exempt doctors from the criminal law.
- Change the standard uniformly to 'gross negligence' - this would affect not just doctors, but all people (such as airline pilots or bungy jump operators) who carry out dangerous activities.
In 1989 the Crimes Consultative
Committee proposed reform of the homicide law into 3 offences:
- culpable homicide - intentional or ff reckless infliction of injury causing death. Maximum sentence life imprisonment for this
- negligent killing - maximum penalty of 5 years in prison.
Manslaughter would be broken into the latter two separate offences. 'Negligence' would be defined as 'a major departure from the standard of reasonable care'.
However, this committee did not recommend changes to the sections of the Crimes Act (155 and 156) applying to doctors. It exempted these sections from any proposed law change because it said that inherently dangerous activities warranted strict adherence to reasonable standards of care.
The Police do not support any change to the Crimes Act, nor does the Secretary of Justice. Any changes would have implications for people other than doctors, or doctors would have to be given special treatment which is not a sustainable argument.
However the Ministry of Health says that although the doctors' arguments are not well founded, their concern could result in 'a negative impact on the way in which medicine particularly surgery and anaesthetics is practised in New Zealand' and therefore 'urgent action is necessary to address this issue'.
So far the public and community groups have not been consulted on this matter. No submissions have been called for but the medical profession is lobbying hard. Individuals or groups who want to comment can make their views known to: Mr Doug Graham, Minister of Justice, Parliament Buildings, Wellington