On 1st December 2020, Dr MAK Wan Ling, a registered medical practitioner, was found guilty of Manslaughter by Gross Negligence (“GNM”) in a retrial by the High Court in Hong Kong. She was sentenced to 3½ years’ imprisonment. Dr Mak administered a heavily contaminated processed blood product to a patient, causing the patient’s death. She failed to ensure that bacteria tests had been conducted on the blood product and to obtain proper consent from the deceased.
To follow up, the Centre for Medical Ethics and Law of the University of Hong Kong (our centre) will hold a webinar to explore some of the issues raised.
Dr Mak’s appeal
Prior to the retrial in which she was convicted, Dr Mak had appealed to the Hong Kong Court of Final Appeal (“HKCFA”) from a judgment on a preliminary issue: HKSAR v Mak Wan Ling [2019] HKCFA 37.
In the HKCFA, Dr Mak argued that, in addition to the objective reasonable man test, the prosecution is required to show that the defendant was subjectively aware of an obvious and serious risk of death to the deceased in order to prove the element of “gross negligence” in the offence of GNM (“Proposition”).
“Objective test” adopted in England and Wales
In the leading English case of R v Adomako [1995] 1 AC 171, the House of Lords held that whether the defendant’s breach of duty should be characterised as “gross negligence” is a question for the jury who “have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care … involving … a risk of death to the patient, was such that it should be judged criminal”.
The HKCFA noted that Adomako applies an “objective test” for “gross negligence” by reference to a standard of care.
Dr Mak’s arguments in favour of including a “subjective test”
In support of her proposition to adopt a “subjective test” in determining whether the conduct involved “gross negligence” (the Proposition), Dr Mak put forward two arguments.
Firstly, Dr Mak contended that the definition of the offence of GNM is objectionably “circular” in the sense that the Adomako line of authority failed to offer a jury sufficient guidance as to what constituted “gross negligence”, leaving the jury to decide whether the negligence in a particular case warranted determination as a crime.
Secondly, Dr Mak argued that it is unacceptable in principle and contrary to authority for the liability for an offence as serious as manslaughter to rest on an objective test, instead of proof of the defendant’s awareness of the risk of causing death.
HKCFA’s decision
The HKCFA rejected Dr Mak’s arguments and concluded that “[i]n the offence of manslaughter by “gross negligence”, the element of “gross negligence” … is proved by application of the objective standard of reasonableness, there being no additional requirement that the prosecution must also prove that the defendant was subjectively aware of an obvious and serious risk of death to the deceased. Such awareness, if proved, is relevant to liability but not a necessary ingredient of the offence.” (paragraph 56 of the judgment)
Application of the law of GNM to the medical profession
In addition to the test for “gross negligence”, the application of the law of GNM to the medical profession has also been the subject of debate. On the one hand, it has been suggested that applying GNM to the medical profession could encourage the practice of defensive medicine, affect compassionate care, cause alienation of the medical profession and hinder the development of a safety culture.1 On the other hand, it has been contended that doctors should be accountable.2
Register for our webinar
These and other issues will be considered by a panel of lawyers and doctors in our webinar entitled “Gross Negligence Manslaughter: Should it apply to healthcare practitioners?” scheduled for Friday, 9 April 2021 (4:00 pm – 6:00 pm (HK Time)). The webinar will include the following presentations.
- Gross Negligence Manslaughter (GNM): Practical Considerations from a Healthcare Defence Lawyer
- Medical manslaughter in Hong Kong — how, why and why not?
- Gross Negligence Manslaughter and the Medical Professions — Exception or Exceptionalism?
- Gross Negligence Manslaughter: the UK experience
Accredited for CME purposes. Applied to the Law Society of Hong Kong for CPD accreditation.
Register here for free. Click here for the abstracts.
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1 Gilberto KK Leung. “Medical manslaughter in Hong Kong—how, why, and why not”. Hong Kong Medical Journal (2018) 24:384–90. https://www.hkmj.org/abstracts/v24n4/384.htm
2 Derrick KS Au. “Somewhere between no-blame culture and treating medical errors as crimes”. Hong Kong Medical Journal (2018) 24:330–2. https://www.hkmj.org/abstracts/v24n4/330.htm