Law Report: Anaesthetist's conviction for manslaughter upheld: Regina v Adomako - House of Lords (Lord Mackay of Clashfern, Lord Chancellor, Lord Keith of Kinkel, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Woolf), 30 June 1994

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In cases of manslaughter by criminal negligence involving a breach of duty, the issue of how far conduct must depart from accepted standards to be characterised as criminal, having regard to the risk of death involved, is necessarily a question of degree and is supremely a jury question.

The House of Lords unanimously dismissed the appellant's appeal against conviction for manslaughter.

The appellant, an anaesthetist, took over the latter part of an eye operation at 10.30am. At approximately 11.05am a disconnection of the endotracheal tube, which had been inserted to enable the patient to breathe by mechanical means, occurred. The supply of oxygen to the patient ceased and that led to cardiac arrest at 11.14am.

The appellant did not notice or remedy the disconnection during that period. He became aware something was amiss when the alarm sounded on the machine monitoring the patient's blood pressure.

He then checked the machine and administered atropine to raise the patient's pulse. He did not check the endotracheal tube connection. The disconnection was not discovered until after resuscitation measures had begun.

The prosecution alleged that the appellant was guilty of gross negligence in failing to notice or respond appropriately to obvious signes of a disconnection, such as the patient's chest not moving, the dials on the mechanical ventilating machine not in operation, the disconnection, the alarm on the ventilator was not switched on, the patient becoming progressively blue, and the patient's pulse and blood pressure dropping.

The appellant conceded he had been negligent, but that his conduct was not criminal. The appellant was convicted by a majority of 11 to 1. The Court of Appeal dismissed his appeal.

Lord Williams of Mostyn QC and James Watson (Bindman & Partners) for the appellant; Ann Curnow QC and Anthony Leonard (CPS) for the Crown.

LORD MACKAY LC said that the Court of Appeal, following R v Bateman 19 Cr App R 8 and Andrews v DPP (1937) AC 576, held that except in cases of motor manslaughter, the ingredients to establish involuntary manslaughter by breach of duty were the existence of the duty, a breach of the duty which had caused the death and gross negligence which the jury considered to justify a criminal conviction; the jury might find gross negligence on proof of indifference to an obvious risk of injury to health or of actual foresight of the risk coupled either with a determination nevertheless to run it or with an intention to avoid it but involving such a high degree of neligence in the attempted avoidance as the jury considered justified conviction or of inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant's duty demanded he should address.

The law as stated in Bateman and Andrews was satisfactory as providing a proper basis for describing the crime of involuntary manslaughter.

On that basis, the ordinary principles of the law of negligence applied to ascertain whether or not the defendant had been in breach of a duty of care towards the victim who had died.

If such breach of duty was established the next question was whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime.

That would depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury would have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.

The test of how far conduct must depart from accepted standards to be characterised as criminal was necessarily a question of degree. An attempt to specify that degree more closely was likely to achieve only a spurious precision. The essence of the matter which was supremely a jury question was whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.

The law as stated in R v Seymour (1983) 2 AC 493, concerning manslaughter by reckless driving, should no longer apply as it was unsatisfactory that there should be any exception to the generality of the statement of the correct basis in law for the crime of involuntary manslaughter.

It was appropriate that the word 'reckless' should be used in cases of involuntary manslaughter, but in the ordinary connotation of that word. It was unnecessary in the context of gross negligence to give the detailed directions with regard to the meaning of the word 'reckless' associated with R v Lawrence (1982) AC 510.

The circumstances to which a charge of involuntary manslaughter might apply were so various that it was unwise to attempt to categorise or detail specimen directions.

The summing-up in the present case was a model of clarity and could not be faulted. The appeal would be dismissed.

In cases of manslaughter by criminal negligence involving a breach of duty it was a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal following Bateham and Andrews and it was not necessary to refer to the definition of recklessness in Lawrence, although it was perfectly open to the trial judge to use the word 'reckless' in its ordinary meaning if he deemed it appropriate in the circumstances of the particular case.