BREACHING THE SEXUAL BOUNDARIES IN THE DOCTOR-PATIENT RELATIONSHIP: SHOULD ENGLISH LAW RECOGNISE FIDUCIARY DUTIES?

Medical manslaughter: Resolving circularity

The legal basis for prosecution and conviction for gross negligence manslaughter has failed to provide prosecutors, judges, and juries with sufficient certainty as to what constitutes the offense in the nineteenth or twentieth centuries. It remains to be seen whether 'revised guidance' or a plea for clearer understanding of the elements of the offense of gross negligence manslaughter as set out in the rapid policy review will be a sufficient remedy to allay doctors fears, or whether an entirely new approach is required. If the latter, then founding the charge on the basis of a betrayal of trust between the patient and her doctor may represent a concept that the jury can recognize and empathize with. If a jury can understand a binary decision of betrayal vs nonbetrayal, then the judge's task of direction will be simplified, less ambiguous, providing certainty. At the same time, the Crown Prosecution Service of the UK may find it easier to identify the rare cases of betrayal of trust that merit prosecution. LEVEL OF EVIDENCE: V; expert opinion.