Drs Bramhall and Bawa-Garba and the rightful domain of the criminal law

Abstract

In the wake of two recent high-profile, controversial cases involving the prosecution and conviction of Drs Bramhall and Bawa-Garba, this article considers when it is socially desirable to criminalise doctors’ behaviour, exploring how the matters of harm, public wrongs and the public interest can play out to justify—or not, as the case may be—the criminal law’s intervention. Dr Bramhall branded his initials on patients’ livers during transplant surgery, behaviour acknowledged not to have caused his patients any harm by way of injury to their organs. Dr Bawa-Garba misdiagnosed and failed to properly assess a 6-year-old boy with pneumonia and sepsis under her care, who subsequently died. Taking account of contextual and public interest concerns, can and should there be exceptions to imposing criminal liability where a doctor’s behaviour is deemed grossly negligent and a significant contribution to a patient’s death? And is it really appropriate to subject a doctor to penal sanction where he may have committed a private wrong against a patient, but does not set back their interests?