The criminalisation of medical mistakes in Canada: a review.

1. Introduction

The issue of health professionals facing criminal charges of manslaughter or criminal negligence causing death or grievous bodily harm as a result of alleged negligence (1) in their professional practice was thrown into stark relief by the recent acquittal of four physicians accused of mismanaging Canada's blood system in the early 1980s. (2) Stories like these, as well as international reports detailing an increase in the numbers of physicians being charged with (and in some cases convicted of) serious criminal offences as the result of alleged negligence in their professional practice, (3) have resulted in some anxiety about the apparent increase in the incidence of such charges and their appropriateness in the healthcare context. Whilst research has focused on the incidence, nature and appropriateness of criminal charges against health professionals, particularly physicians, for alleged negligence in their professional practice in the United Kingdom, (4) the United States, (5) Japan, (6) and New Zealand, (7) the Canadian context has yet to be examined.

This article examines the Canadian context and how the criminal law is used to regulate the negligent acts or omissions of a health care professional in the course of their professional practice. It also assesses the appropriateness of such use. It is important at this point to state that the analysis in this article does not focus on those, fortunately few, cases where a health professional has intentionally killed his or her patients (8) but rather when patients' deaths or grievous injuries were allegedly a result of that health professional's negligent acts or omissions when providing health services to that patient. (9)

In the first section of this article, I review the use of the criminal law in the healthcare context, discuss its theoretical justifications, and review the problems associated with its application in health care. In the second section of this article, I move from theory to practice and examine the circumstances in which the criminal law is being employed as mechanism to address allegedly negligent acts or omissions committed by Canadian physicians in their professional practice which result in the deaths or grievous injuries of their patients. More specifically, I quantify the numbers of physicians who have faced criminal charges in such circumstances and the outcomes of those cases. I do this to determine the incidence of such charges in Canada but also to determine whether charging patterns, conviction rates and acquittal rates map with broader concepts about the appropriateness of the application of the criminal law in this context. I then place these results in their broader context by comparing them, as much as it is possible to do so, with data from the United Kingdom. (10) Although other health professionals have faced criminal charges as the result of alleged negligence in their professional practice, I focus the analysis in this article on physicians. I do this because the data is strongest for this group and also to enable comparison with the data from the United Kingdom which also focuses on physicians. However, the discussion and analysis in this article also applies to other health professionals.

2. Criminal Law and Negligent Acts

Criminal liability for negligence has long been contentious as it raises, to quote McCall Smith, "fundamental issues of criminal policy which go to the heart of our notions of when it is appropriate to punish those whose conduct demonstrates fault rather than an intention to inflict harm." (11) Some suggest that negligence should not be a basis for criminal liability as criminal sanctions should only be imposed upon people for the consequences of actions they intended or outcomes that they foresaw as a probable consequence of their actions. (12) Others support the imposition of criminal sanctions for those who were negligent on the basis that a defendant could have complied with expected standards of conduct expected by reasonable persons but did not do so. (13) In addition, supporters argue on utilitarian grounds that the threat of criminal sanction has a prospective effect in that it encourages improved standards of practice. (14)

Despite this principled disagreement the latter view prevails and criminal liability can be found for grossly negligent conduct in the common-law and in the codified criminal law in Canada. Those whose negligent acts or omissions cause a death may face, in Canada, a charge of criminal negligence causing death or, in other common-law countries, a charge of manslaughter through gross negligence.