Should gross negligence be considered a criminal offense?
By Dylan O'Neill | Nov 22 2018Yes by Dylan O’NeillWhen you think of ‘gross negligence’ what will no doubt come to mind is an image of a doctor telling a patient that there was an error in their diagnosis/treatment. This scenario was made all too real in light of the cervical check scandal that saw the tragic death of Emma Mhic Mhathuna and the eighteen other women who died, after they were given false smear test results by the Health Service Executive (HSE).While some newspapers estimated that the total amount of compensation for the victims could reach €500 million, it was the HSE as a government body that paid out the compensation. No individual who withheld the truth of the false results from these women ever faced criminal charges. The law is there to protect a country’s citizens, so why should those who caused harm the most vulnerable, the sick, not face the same justice as those who commit crime?It’s not just the sick that can be the victims of gross negligence. In 2017, The Health Information and Quality Authority (Hiqa) report found systems failures at Tusla, a government-funded child protection agency, from inadequate management oversight, to poor record-keeping and delays in responding to referrals of child sex abuse allegations. The families, and especially the children, under the care of Tusla were in a vulnerable position and the agency’s failure to act accordingly on these allegations put these children at greater risk of the abuse continuing. Although the Hiqa report found serious failures in implementing policies, recording important decisions and monitoring the effectiveness of steps to protect children, Tusla CEO Fred McBride only apologised for the agency’s “deficiencies”. No one in the direct duty of care of these children, was found to be guilty of any criminal wrongdoing over the mishandling of sexual abuse claims. There must be a legal form of protection for these children, whereby breach of that trust is treated with the utmost severity, to emphasise the seriousness of the care that is entrusted onto these individuals.Finally, RTE reported that last year there were nearly 700 complaints made to Hiqa about conditions faced by those in nursing homes. These complaints ranged from assaults to unfit living conditions. Even Hiqa noted a lack of legislation concerning the protection of nursing home residents. When complaints which were seen as to be potentially criminal in nature were lodged, Hiqa passed on the appropriate information to An Garda Siochana and the HSE’s National Safeguarding Office. Following the publishing if this article, a piece of legislation went before the Seanad which provided mandatory reporting in incidences of adults suffering abuse and established an adult safeguarding authority which would be required to respond with an investigation in cases of serious reports of abuse. This legislation is the first step in establishing an effective protective measure for elderly residents in nursing homes and setting a standard across services where the sick, elderly or underage maybe at risk. This could then be expanded to be the norm where clear laws are put in place and action is taken against those who abuse their position. No by Nathan Young Like with most questions surrounding criminal justice, the first question to answer is what the purpose of the criminal justice system is. As far as it being an effective crime reduction tool, the best philosophies are for it to be a deterrent for prospective criminals, and as a reforming tool to help people reintegrate into civil society. Leaving aside the concept of Gross Negligence Manslaughter, gross negligence is clearly not best dealt with under either of these systems.Picture the following: A doctor in their forties is found guilty of gross negligence. They lose their license to practise medicine, thereby losing their job. The hospital that employed them and perhaps they themselves end up hugely out of pocket for allowing this to happen. Given that this person must now find a new career so late in their life, what benefit could be gained by adding to this a criminal record or gaol time?Currently, those who are found to be grossly negligent find themselves severly out of pocket and potentially losing their license to practice or ability work in their field. It is not an offence linked to endemic poverty or lack of education, as many violent crimes are. It’s not something where rehabilitation is needed.The threat of a criminal conviction as a deterrent seems slightly more convincing as an argument. Knowing one could land in gaol for gross negligence could motivate some to be more diligent. However, when considering the threat of the situation outlined above with the loss of the livelihood made for themselves by the potentially negligent, anyone not afraid of that situation is not going to be convinced to act differently by fear of repercussions regardless.The third reason for a criminal justice system many people believe in is punitive, that those who do wrong must suffer. Here, of course it holds up that gross negligence is a wrong doing and if those who do wrong are to be punished, then the grossly negligent must be punished. Here though it must be remembered that punitive justice is incredibly ineffective at preventing crime, and is based on a wish for vengeance more so than an effort to help victims and reduce re-offence rates.As a civil offence, the victims of gross negligence can seek monetary reparations from the professionals and institutions responsible, and while that may not undo the harm done, it’s a damn sight better for them than getting nothing but knowing some former doctor is now in gaol with a criminal record.A final point on the concept of Gross Negligence Manslaughter being ignored in the arguments above, as it seems unfair to ignore the extreme cases. The laws surrounding situations where doctors, nurses, prison guards, or other professionals with a duty of care of some description let or leave those in their care to die surely constitutes the grossest of gross negligence. Except here the crime is manslaughter, which while it may have been caused by negligence, is a separate offence which is rightly dealt with under separate laws. Manslaughter would still be a crime if the people involved did not have a duty of care. Being terribly negligent at one’s job would not be a civil offence if there was no duty of care. The distinction here matters, and those guilty of Gross Negligence Manslaughter are guilty of a form of manslaughter, not gross negligence.Rebuttal by Nathan YoungImplied in the first paragraph above is the assumption that what’s needed is retribution of some form. Of course, the €7.5 million settlement did nothing to save the life of Emma Mhic Mhathúna. Neither, of course, would a criminal punishment for the management of the cervical cancer screening programme. The case against punitive justice still stands. If our concern is that those who do what is morally wrong are met with punishment, then of course gross negligence should be made a crime. However, if our concern is about preventing gross negligence from occurring and to reduce harm, then perhaps criminal proceedings are not what’s needed. This is not to say that punishments as a deterrent shouldn’t be used, or that those who prove that they cannot be trusted with the kinds of responsibilities we’re discussing shouldn’t be stripped of their responsibilities.As for the law mandating reporting for abuse of elders in retirement homes, the issue seems to be one of a contention over what gross negligence is. Abuse is clearly a crime in and of itself, and although having a duty of care over someone makes it much easier to commit said crime, it’s not defined by that, and those with no duty of care can still abuse.Another issue is the lack of recognition that something can be in breach of the law without it being criminal. To say that a certain action need not be criminalised does not mean to say that it ought be accepted or ignored. In many of the cited cases above, either civil law has not been used to its fullest extent, or civil law currently lacks the scope to deal with these situations. In cases where the laws on the books prove inadequate, it is only right that the law be expanded to better protect people in the future. State and private sector employees in healthcare, child-care, and nursing homes who are grossly negligent, be it through caprice or incompetence, should be removed from their posts and prohibited from being able to do the same again. Victims should be able to seek and get compensation for the harm done to them. Prisons don’t need negligent doctors and nursing home administrators.Rebuttal by Dylan O’NeillIn the opening statement, my opponent said that the best philosophies for the criminal justice system as an effective crime reduction tool are to be a deterrent and to reform those within the system. That may seem like the ideal situation, however, this is far from the practical running of the justice system. In 2015, the Prison Recidivism Study found that the rate of re-offending for offenders released in 2009 was 47.5%. This clearly shows that more must be done to reform the prison system in terms of rehabilitation, and therefore the only philosophy that stands in the criminal justice system is that of it as a deterrent. In my opponent’s opinion, this is not the best way to deal with gross negligence. From the example you gave, the question remains of whether or not you think a person should themselves bear more responsibility in cases of gross negligence. In the case of the HSE being sued over the Cervical Check scandal, it was was the governing body that paid out, and while I’m sure several people lost their jobs over it, it was the HSE, as employers, that decided what measures were taken against the individuals they deemed responsible, not the State. This was not simple malpractice, but gross negligence.If all cases of gross negligence resulted in the possibility of a criminal conviction, varying on the severity, this would be an effective tool at tackling the problem at a grassroots level. Individuals in positions which carry a duty of care would have to be conscious that a criminal record would be a greater detriment to them than losing a civil case in the long run. On the point you made about the criminal justice system being seen as a “punitive” measure, it would be irresponsible to allow offenders to enter back into the field after they were found guilty of breaking the trust place upon them in their duty of care. The criminal justice system, while far from perfect, is there to protect the citizens against repeat offences made by an individual that would cause them harm.Reforming the definition to categorise gross negligence as a criminal offense for those placed in a duty of care to the elderly, sick, or children would effectively provide a deterrent while removing those who abuse the trust placed in them. The Gross Negligence Manslaughter charge being used as a guide to sentence those convicted accordingly.