“Who is responsible for unexpected deaths in Medical Practice; the individual medical practitioner(s) or the medical profession collectively including the regulators?”
I finished the last blog with the musing above. (I missed out the “unexpected” in the previous blog). It is linked to a previous question: “Are doctors born or made?”
The issue at stake is one of culpability. Who is to blame when things go wrong? That involves both an awareness of what has actually happened and those responsible for the various elements that have shown to be at fault. But of course, it gets more complex when we start to break things down: Ignorance, Willful ignorance and Negligence. And then we must concede that we speak different languages: “Moral psychology and criminal jurisprudence share several important concepts, such as responsibility, excuse, blame, and punishment.” A direct quote from a paper by David Brink, ‘The Nature and Significance of Culpability’ [1]. Now this is a paper to promote the idea that culpability is not a unitary concept, rather it spans a range from narrow culpability (the elemental mens rea) to broad culpability (this is a “responsibility position that makes wrongdoing blameworthy”). Inclusive culpability is also described. The concluding sentence of the abstract is worth quoting verbatim: ”Moreover, the distinction between narrow and broad culpability has significance for the understanding and assessing the distinction between attributability and accountability and the nature and permissibility of strict liability crimes.”
Contrast this with a paper from Mark Dsouza, ‘Criminal culpability after the act [2]. Dsouza argues that changes are needed in the “organization of the theoretical analysis of criminal culpability,”, in order to make the criminal law fairer. This is especially the case where culpability assessments involve comparison of the actions of a defendant to those of a “notional reasonable person,”. Regarding the organization, Dsouza feels that culpability, as a theoretical concept, changes with the temporal staging the process of criminal law.
What conclusion can be drawn from citing just two papers? I draw no conclusions apart from the fact that there are two papers, both of a theoretical nature which reflect different views of the mechanics of justice. This is supposed to be the fertile bed of ideas on which new laws take root and flourish. I mentioned “willful ignorance” earlier. This is an interesting concept where a person might truthfully deny knowledge of something, but they could have or should have acquired the knowledge. This is discussed in terms of drug-related offenses, but medical practice is another very controversial area where what is and what is not requisite knowledge is not clearly defined. This of course was a grave error in the trial of Dr Mak where the medical experts indicated that she should have been aware of the risks of contamination of processed samples. But where does this occur in the medical curriculum? Are all new medical graduates taught to check the laboratory standards where they are working? Of course not. There is an expectation that each person in the system is doing their best. Without that aspect of trust the complex interconnected world of medicine cannot function.
I do not like to add too many links to a blog as it makes it hard to read but, in this case, let me point you towards an article on willful ignorance [3]. A pdf version of this paper is freely available. It is instructive to see how genuine ignorance can lead to terrible miscarriages of justice as in this case: https://www.ejinsight.com/eji/article/id/2884643/20210817-Miscarriage-of-Justice#.YjwUfpwACeI.link. This was a miscarriage of justice in Hong Kong that reflected very badly on the Department of Justice and dishonest lawyers in Hong Kong. Of note, Judge Judianna Barnes showed a level of astuteness which unfortunately was not matched by the trial judge who allowed a perverse case to proceed.
In the case of Dr Vanessa Kwan, the trial Judge was quite junior and not really up to dealing with the perfidy of the DOJ and the Prosecution counsel. I do not know if it is customary when delivering the ‘reasons for sentence’ to put the onus on the Jury for a guilty verdict. I am just picking out a few quotes:
Para 66: “[…] the defendant’s conduct in carrying out this procedure as found by the jury fell far below the standard of care incumbent on her and was so truly exceptionally bad. The jury found that the defendant’s breach of her duties gave rise to a serious and obvious risk of death and that they substantially caused the death of Lee.”
Para 67: “Lee placed her life into the defendant’s hands. The defendant turned a blind eye to the hazards of the situation. She disregarded the need to attend to Lee’s airway and provide her with supplementary oxygen when she administered the combination of sedative drugs. She ignored and silenced the alarm on the Mindray […]”
Para 69: “The defendant’s conduct fell so far short of what could reasonably have been expected of her that such conduct was so exceptionally bad such that the jury found her conduct required criminal punishment. This was an abysmal failure of her duty of care incumbent on her and showed such high disregard to the life and safety of Lee.”
I have previously stated that I felt the Judge in this case was trying to do her best but was misled by a prosecution that was literally playing fast and loose with the truth. When a guilty verdict is achieved by a corrupt prosecution Justice is not at all well served. This was not a miscarriage of Justice. It was an abrogation of Justice.
Final thought: I do agree with Justice Barnes that genuine innocence should be proof of lack of guilt. To be convicted of an offense you must have been found guilty. But whilst guilty implies guilt, it does not prove it. The Law is based not on truth but on perception, and that is wrong.
References:
- Brink OD. The nature and significance of culpability. In: Dempsey MM, Matravers M, (Eds.). Criminal Law and Philosophy. New York, USA; Springer; 2019: pp.347-373.
- Dsouza, M. Criminal culpability after the act. King's Law Journal 2015;26(3):440-462.
- Sarch, A.F. Willful ignorance, culpability, and the criminal law. John's L. Rev 2014;88:1023.
