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The Criminal Justice System and Health Care$
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Charles A. Erin and Suzanne Ost

Print publication date: 2007

Print ISBN-13: 9780199228294

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199228294.001.0001

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Medical Manslaughter: The Rise (and Replacement) of a Contested Crime?

Medical Manslaughter: The Rise (and Replacement) of a Contested Crime?

(p.29) 3 Medical Manslaughter: The Rise (and Replacement) of a Contested Crime?
The Criminal Justice System and Health Care

Oliver Quick

Oxford University Press

This chapter considers the increase of, explanations for, and alternatives to prosecutions of health care professionals for manslaughter following fatal error. It begins by analysing arguments for and against the imposition of negligent criminal liability. The process by which this crime has received cultural acceptance is considered and particular attention given to the context of the changing landscape of regulating quality in healthcare. Shifting perceptions of the notion of trust are considered central to this. It is argued that the difficulties of interpretation and the potential vagaries of discretion render this offence incapable of clear and objective measurement and that consequently, it ought to be abolished. Finally, the chapter considers available alternatives in the form of Health and Safety Law, and from within the existing and proposed structure of homicide. It concludes that there are persuasive philosophical and practical arguments for pitching liability at the level of recklessness.

Keywords:   medical error, trust, recklessness, negligence, criminalization, homicide

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