NORTH EAST LAW REVIEW 147 APPORTIONMENT OF RESPONSIBILITY IN MEDICAL NEGLIGENCE PAUL WHITE* Medical treatment should never break the chain of causation in order to allow the proper apportionment of responsibility and ensure legal certainty. The case of R v Jordan (1956) 40 Cr App R 152 was wrongfully decided in so far as responsibility for death can never be justly absolved from the original assailant. Legal causation must take into account who is morally blameworthy. In conclusion, Parliament should abrogate medical negligence as a novus actus interveniens, as it would ensure legal clarity and proper apportionment of responsibility to the most culpable actor, with little de facto change to the law. The law in relation to medical negligence constituting a novus actus interveniens suffers from severe linguistic frailties. It displays little in the way of a clear doctrinal approach, allowing for policy considerations to lie beneath the vague terminology adopted by the judiciary. It is submitted that medical negligence should never break the chain of causation, in order to allow the proper apportionment of responsibility and ensure legal certainty. Furthermore, it is argued that R v Jordan 1 was wrongly decided and that the current law makes medical negligence breaking the chain of causation almost impossible. Therefore, Parliament should legislate to the effect that medical negligence may never break the chain of causation in criminal law. The act of a third party breaks the chain of causation if it is free, voluntary and informed and it renders the original act no longer a substantial and operating cause of the outcome. 2 The courts have been reluctant to hold that medical negligence has broken the chain of causation in criminal law. However, in Jordan treatment which was described as palpably wrong 3 was held to break the chain of causation. The two stab wounds, which had pierced the victim s intestines, had mainly healed at the time of death. Therefore, they could no longer be said to have caused the victim s death. Later case law has marked a gradual retreat from Jordan. In R v Smith 4 the appellant stabbed the victim with a bayonet during a fight, piercing his lung and causing a haemorrhage. The victim subsequently died after receiving what was acknowledged as thoroughly bad 5 medical treatment. However, the appeal was dismissed on the basis that the wound was still an operating cause and a substantial cause 6 of death. * Paul White, Newcastle University, Law LLB Stage Two. 1 R v Jordan (1956) 40 Cr App R 152. 2 R v Smith [1959] 2 QB 35, per Lord Parker C.J. 42. 3 Jordan (n 1) 157. 4 R v Smith [1959] 2 QB 35. 5 Smith (n 4) 43. 6 Smith (n 4) 42.
148 APPORTIONMENT OF RESPONSIBILITY IN MEDICAL NEGLIGENCE The circumstances in which medical negligence may break the chain of causation were further refined in R v Cheshire. 7 Cheshire shot the victim in the thigh and stomach, the wounds necessitated surgery from which he developed breathing difficulties. A tracheotomy was performed which led to scarring of the trachea, causing the victim to die. It was held that medical negligence would only break the chain of causation where it was so independent 8 of the defendant s acts and so potent 9 in causing death, that it rendered the defendant s contribution insignificant. 10 Medical negligence should never break the chain of causation in criminal law, to allow otherwise would facilitate the possibility of improper attribution of moral responsibility. Responsibility for death can never be justly absolved from the original assailant. If the but for test 11 is applied; but for the original attack, medical treatment would not have been necessary, thereby obviating any medical negligence. It is conceded that the but for test is overly wide and inclusive. However, an original wounding is the only reason that treatment and presence in a hospital would be required. This holds no matter how gross the negligence or how much the original wound may have healed at the time of death. Responsibility must therefore be properly attributed to the defendant by never allowing medical negligence to break the chain of causation. Tadros argues that causal enquiry is sensitive to moral factors. 12 This is undoubtedly correct as fundamental moral principles underpin the criminal law. Legal causation must take account of who is morally blameworthy, indeed Williams describes legal causation as a test of moral reaction. 13 The doctor will never be the most blameworthy. No matter how negligent they may have been they would still have been trying to help the victim recover from wounds inflicted by the defendant. Strawson suggests that to be responsible, a person must be an appropriate target for reactive attitudes 14 in relation to their conduct. The role of doctors in society is to try to help, this is in stark contrast to the knife or gun wielding criminal who seeks to do harm. Consequently, the defendant will always be a greater target for negative reactive attitudes and, therefore, more morally responsible. It is not submitted that a doctor will not also be morally responsible and perhaps criminally liable for gross negligence manslaughter or damages in tort. However, the doctor will never be the most morally responsible and therefore medical negligence should never break the chain of causation. In addition the law is too imprecise, leading to unacceptable degrees of uncertainty. The language used to define when a break in the chain of causation will occur is ambiguous and the case law is irreconcilable. While it is conceded that this affords the law greater 7 R v Cheshire [1991] 1 WLR 844. 8 Cheshire (n 7) per Beldam L.J 852. 9 ibid. 10 Ibid. 11 R v Dyson [1908] 2 KB 454. 12 Victor Tadros, Criminal Responsibility (OUP 2005) 156. 13 Glanville Williams, Textbook of Criminal Law (2 nd edn, Sweet & Maxwell 1983) 381. 14 P. F. Strawson, Freedom and Resentment and Other Essays (Routledge 2008) 15.
NORTH EAST LAW REVIEW 149 flexibility to deal with novel cases this argument is more convincing in a private law context. However, it must be legal certainty which takes precedence in the criminal law, due to the restrictions on an individual s liberty which may be imposed. Abrogation of medical negligence as a novus actus interveniens would restore much needed certainty to the law. In Jordan a distinction is drawn between normal and abnormal treatment. This is also advocated by Hart and Honoré. 15 However, it is vague and unhelpful. Norrie argues, [t]he problem is that what is normal... is a matter of judgement and perspective. 16 This is correct because what is perceived as normal will vary enormously depending upon social background or geographical location. This ambiguity provides an intrinsically flawed base for the imposition of criminal sanctions. Hart and Honoré also state that a novus actus interveniens must be a voluntary act, 17 this was considered to be broadly correct 18 in R v Pagett. 19 However, this is yet another term which is inherently vague and promotes uncertainty in the law. Hart and Honoré refer to the American case of State v Preslar, 20 in which a woman died sleeping outside after leaving her house. They point out that her actions should be regarded as fully voluntary 21 as she had slept outside without necessity. However, her choice takes on a much less voluntary appearance when it is considered that she was beaten by her husband. Her actions may more accurately be viewed as an act of necessity, induced by a desire for self-preservation. These differing conclusions highlight the difficulties with adequately defining what is meant by a term such as voluntary and the consequent problems with legal certainty. These linguistic frailties leave this area of causation underpinned by concepts which lack a valid theoretical grounding. 22 The equivalence of the language leads to a wide variance in interpretation depending on whether focus is on individualism or a broader view of the social context. The emphasis on individualism and a narrow approach leaves causation analysis fundamentally flawed 23 as it is left to policy to mark out the boundaries which the ambiguous language cannot. Public policy should not be veiled behind a curtain of vague terminology. It is undesirable for both legal certainty and it confers too wide a discretion upon the judiciary facilitating ex post facto rationalisation. Decisions may be reached based on policy and then justified by working backwards using vague terminology such as voluntary or normal. If medical negligence could not constitute a novus actus interveniens these deficiencies would be remedied. 15 Hart and Honoré, Causation in the Law (2 nd edn, OUP 1985) 340. 16 Alan Norrie, Crime, Causation and History: A Critical Introduction to Criminal Law (2 nd edn, CUP 2006) 138. 17 Hart and Honoré (n 15) 352. 18 (1983) 76 Cr App R 279, 289 per Goff L.J. 19 (1983) 76 Cr App R 279. 20 (1888) 50 Ark 545. 21 Hart and Honoré (n 15) 327. 22 Norrie (n 16) 141. 23 Norrie (n 16) 140.
150 APPORTIONMENT OF RESPONSIBILITY IN MEDICAL NEGLIGENCE Furthermore, the case law cannot be reconciled. In both Jordan and Cheshire the wounds which the defendants had inflicted upon the victims were no longer life threatening nor were they the immediate cause of death. In Jordan the wounds were mainly healed at the time of death 24 while in Cheshire the original bullet wounds no longer threatened the life of the deceased and the chances of recovery were good. 25 The palpably wrong 26 treatment in Jordan is analogous to the negligent lack of treatment in Cheshire. However, the cases were decided differently. In Cheshire it was held that medical negligence did not render the defendant s acts insignificant and consequently did not break the chain of causation. In Jordan the chain of causation was broken due to the not normal treatment. 27 This incongruence in the law leads to little clarity as to when medical negligence will break the chain of causation. Jordan and Cheshire came to antithetical conclusions on similar facts. This presents problems with legal certainty, which would be alleviated if medical negligence could never break the chain of causation. It is submitted that Jordan is an anomaly and should have been decided differently. A broader analysis illustrates that the only reason the victim received treatment was as a result of the original wound inflicted by the defendant. 28 It was therefore still a substantial cause of the death even if it had mainly healed. A broader analysis of Jordan is preferable to a narrow interpretation, as it gives a fuller and more accurate account of events and how they relate to each other. Moreover, applying the approach in Cheshire, it could not be said that the administration of antibiotics in Jordan was so independent of the defendant s acts. It was intended to stop infection of the wound inflicted by the defendant, and therefore dependent upon the stabbing. If it is accepted that Jordan was wrongly decided, there are no reported cases of medical negligence breaking the chain of causation in English law. More recent case law has moved away from Jordan and the current barriers to medical negligence constituting a novus actus interveniens are almost insuperable. In Cheshire it was held that medical negligence must be so independent of the defendant s acts to break the chain of causation. It is submitted that all the medical treatment that a victim receives would be entirely dependent upon the injurious acts of the defendant. This assertion holds no matter how negligent the treatment may turn out to be. Wilson contends that a victim contracting food poisoning from hospital food would come within the so independent requirement in Cheshire. 29 This claim is not correct. The wound would be both condition and cause of the victim being in hospital and eating hospital food. Patients do not check into hospitals and eat hospital food of their own 24 Jordan (n 1) 156.. 25 Cheshire (n 7) 846. 26 Jordan (n 1) 157. 27 ibid. 28 Norrie (n 16) 145. 29 William Wilson, Criminal Law (2 nd edn, Harlow: Longman 2003) 112-13.
NORTH EAST LAW REVIEW 151 volition. It is thus inaccurate to contend that this would be so independent of the wounding as there is no other reason the victim would be eating hospital food unless they had been injured by the defendant. This highlights the difficulty in overcoming the so independent criterion. Moreover, a novus actus interveniens must be a voluntary act of a third party. However, it is doubtful that doctors act voluntarily in light of the decision in Pagett; 30 if this is so medical negligence could not break the chain of causation. In Pagett, police officers returning fire were held not to be acting voluntarily as they were acting under a duty, thus their actions could not break the chain of causation. The same should apply to doctors, who owe a duty of care to their patients. It would be somewhat contradictory to hold that the police act involuntarily while performing their duties while doctors act voluntarily in the performance of theirs. It is submitted that Parliament should legislate to the effect that medical negligence can never break the chain of causation. The current linguistic barriers that negligence be so independent and voluntary mean that a legislative change of this kind would be more of a de jure change than a de facto one. Parliament would simply be elucidating what the law is in practice, as it is currently almost impossible for medical negligence to break the chain of causation. This would make patent the policy concerns underpinning the law, instead of allowing latent application of policy by the judiciary behind a veil of vague terminology. Thereby, ensuring clarity and more importantly the proper apportionment of responsibility to the most morally culpable. Medical negligence breaking the chain of causation facilitates the injustice of absolving a defendant who is the most morally responsible for death. Furthermore, the vague terminology and contradictory case law fosters uncertainty and is an unsound basis for criminal sanctions. These factors highlight the need for Parliamentary intervention to abrogate medical negligence as a novus actus interveniens. Clarity and morally just apportionment of responsibility would be ensured, with little de facto change to the current law. 30 Pagett (n 19).