The Philosophical Dilemma of Criminalising Medical Negligence in England and Wales: A Critical Review of Involuntary Manslaughter and the Harm Principle

The study reviews the philosophical and legal bases for criminalizing the medical profession for gross negligence manslaughter in England and Wales. The study is based on several fundamental criminological and legal theories, such as the harm principle (principle of harm) developed by John Stuart Mill and legal moralism. The study critically evaluates how the criminal justice system processes unintentional medical errors committed under stressful conditions. The research study identifies a significant doctrinal conflict in the application of common law where medical professionals are convicted of a high-level homicide charge based on an objective breach of standard of care, without the requisite subjective element of intent or negligence (mens rea). The study used doctrinal and qualitative research methodologies to determine that this systemic standards-based approach results in the expansion of individual blameworthiness without taking into account the multi-layered institutional healthcare pressures faced by medical professionals and has resulted in defensive medicine rather than true deterrence. The conclusion of this research is that, for criminal liability in Medical Practices, there has to be a change in how we view it philosophically. The authors argue that governmental penal authority needs to intrude into the field of medicine only if the physician engaged in self-willed recklessness. This would prevent the criminalization of physicians practicing self-conscientiously but allow for system-wide safety.