I’ve collected data on the prosecution of manslaughter by criminal negligence in Australia. This research data provides evidence for a larger number of prosecutions than had been acknowledged by the scholarly and historical literature to date: thirty-three additional cases, newly discovered through my archival research, and that constitute an important expansion of the case law.
Most scholars argue that criminal negligence prosecutions for ‘medical manslaughter’ are inappropriate.[1] Various reasons are given for this position. Some argue that the doctrine punishes where culpability does not truly exist, others that prosecution is overused and promotes the very harm it purports to address, whilst yet another group maintains that the doctrine is unjustly vague and unclear in its construction.
Not only have these debates been framed in dubiously instrumentalist terms; they have also, particularly in the Australian jurisdiction, occurred in a sort of vacuum: only four cases of prosecution have been reported in the scholarly literature from the past two centuries.[2]
In the absence of an adequate history of medical manslaughter prosecutions in the Australian jurisdiction it is unclear how frequently such incidents have occurred over the past two centuries or how these incidents have been handled by the criminal law. We simply do not know how many prosecutions have taken place in Australian jurisdictions. Nor do we understand their facts, contexts or findings.
Many fundamental questions remain unanswered: Under what circumstances have instances of iatrogenic harm been prosecuted, and what have been the outcomes? How have outcomes been shaped by the social practices, processes and forces surrounding individual cases? And perhaps most urgently, what insights do these cases yield regarding the criminal law’s capacity to successfully distinguish between culpable and non-culpable instances of harm? Only by addressing these questions can we hope to tackle the scholarly and practical challenge of adjudicating on the correctness, viability and impact of criminal manslaughter prosecutions for iatrogenic harm.
I’ve collected data on the prosecution of manslaughter by criminal negligence in Australia. This research data provides evidence for a larger number of prosecutions than had been acknowledged by the scholarly and historical literature to date: thirty-three additional cases, newly discovered through my archival research, and that constitute an important expansion of the case law.
This data is part of a broader project that investigates the incidence of such ‘medical manslaughter’ prosecutions in Australian jurisdictions. This is one piece of that data set, namely, a Register – Historical MM Cases Australia of manslaughter by criminal negligence and cognate offences that have arisen arising in the healthcare and medical context in Australia. The broader data set (which I will make available at some point in the future when time allows) contains this register, but is accompanied by references to primary and secondary sources including newspaper reports, archival sources.
Note: Please feel free to download and use freely with appropriate acknowledgement of the source. To do so, I recommend making (at a minimum) reference to my first paper that used this data: David J Carter, ‘Correcting the Record: Australian Prosecutions for Manslaughter in the Medical Context’ (2015) 22(3) Journal of Law and Medicine 588.
[1] See the discussion in the Introduction to this thesis as to the key arguments mounted against prosecution of manslaughter by criminal negligence in this context. Some of the material presented in this chapter was previously published in David J Carter, ‘Correcting the Record: Australian Prosecutions for Manslaughter in the Medical Context’ (2015) 22(3) Journal of Law and Medicine 588.
[2] Ian Dobinson, ‘Doctors Who Kill or Harm Their Patients: The Australian Experience’ in Danielle Griffiths and Andrew Sanders (eds), Bioethics, Medicine and the Criminal Law: Medicine, Crime and Society (Cambridge University Press, 2013); Ian Dobinson, ‘Medical Manslaughter’ (2009) 28 University of Queensland Law Journal 101; Nikita Tuckett, ‘Balancing Public Health and Practitioner Accountability in Cases of Medical Manslaughter: Reconsidering the Tests for Criminal Negligence-Related Offences in Australia after R v Patel’ (2011) 19(2) Journal of law and medicine 377; Carter, above n 1.