I have been asked to comment on a news story from Tennessee in the United States – As a nurse faces prison for a deadly error, her colleagues worry: Could I be next? (March 22, 2022). The gist of the story is that a nurse has been charged with “reckless homicide and felony abuse of an impaired adult” for a drug error that led to a patient’s death.
The patient was supposed to get Versed, a sedative intended to calm her before being scanned in a large, MRI-like machine. But Vaught accidentally grabbed vecuronium, a powerful paralyzer, which stopped the patient’s breathing and left her brain-dead before the error was discovered.
This is a blog about Australian law so of course I cannot discuss Tennessee law. Equally I cannot comment on the facts of this case; but I can give an Australian context.
A person who causes the death of another may be guilty of any number of offences ranging from, for example, dangerous driving causing death, to murder. Murder is clearly at the top of serious criminal offences. To be guilty of murder the accused must cause the death of the deceased and intend to have caused death or serious injury and in some circumstances, realised that death would be the probable consequence of their actions (R v Crabbe [1985] HCA 22). The critical issue in murder is that it is deliberate, the accused intended or at least foresaw the fatal consequence of his or her actions. In the case cited we are told “Prosecutors do not allege in their court filings that Vaught intended to hurt Murphey…” In that case if the situation happened in Australia, it would also not be murder.
Manslaughter is unlawful killing that is one step down from murder. There are two categories of manslaughter – voluntary and involuntary manslaughter. Voluntary manslaughter is where the accused causes the death of the deceased in circumstances that would amount to murder – ie with intent to kill – but where the accused is given the benefit of one of the partial defences – provocation or diminished responsibility. Given that the nurse did not intend to hurt the patient, again if the situation arose in Australia, it would not be voluntary manslaughter.
Involuntary manslaughter is where the accused kills the deceased without intention, but their conduct warrants criminal punishment. There are two categories of involuntary manslaughter – “manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence” (Wilson v R [1992] HCA 31). In the context of this discussion, unlawful and dangerous act manslaughter will not be relevant. That leaves manslaughter by criminal negligence.
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment. (Nydam v R [1977] VR 430 at 445 (Young CJ, McInerney and Crockett JJ)).
In an earlier post (Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018). I said:
There is a difference between negligence that leads to an order for compensation and criminal negligence. The diagram below may help:
Where conduct amounts to gross negligence (the red line, above) the negligence moves to the criminal sphere.
Whether any particular action meets the standard that merits criminal punishment is a matter for the jury.
Conclusion
If a nurse, or a doctor, or a paramedic, makes an error in their treatment including giving the wrong drug and it can be shown that this error contributed to the death of the deceased then that practitioner could be guilty of manslaughter if their negligence went beyond ‘mere’ negligence and reached such a high level of culpability that it has moved beyond a mere matter of civil redress and demands criminal punishment.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
Welcome back.
Two questions:
1. Although not yet enacted in NSW, how would your Australian medical scenario play out under WHS Legislation with the introduction of Industrial Manslaughter crimes in some States and Territories? I understand a Queensland business owner (Jeffrey OWEN) was recently sentenced (25.03.2022) to five years imprisonment for this crime under WHS laws. (link: https://www.mccullough.com.au/2022/03/26/individual-jailed-for-whs-industrial-manslaughter/)
2. Given WHS causality is systems-based and includes corporate culture, fatigue, rostering, resource constraints etc. How would a WHS systems-based approach to causality (abstract) compete with a more traditional legal approach to causality (direct)?
I cannot comment on the facts of the Tennessee case and how that would apply in Australia as we don’t have sufficient details. Otherwise any case would depend on its facts. Of course errors can nearly always be attributed to systems errors but delegated responsibilities in a work place make it hard to assign responsibilities to the governing mind of the business.
For example in the ACT the crown has to prove the PCBU was ‘reckless or negligent about causing the death of the worker or other person by the conduct’. Most business will have systems in place (unlike the Queensland example you cited) so even where a mistake is made it would be hard to say they were were reckless or negligent.
These laws have been in place from sometime but it is notorious that they are not used because they are so hard to prove. The mere fact that someone dies at a workplace may be proof of a breach of a WHS duty but more is required to establish corporate manslaughter.