Abstract

There can be no disputing the proposition that doctors and nurses should be held accountable for their professional activities. In most circumstances this accountability should be achieved through appropriate and effective complaints and disciplinary procedures, but there will be cases where the criminal law should become involved. The criminal law, however, is a serious weapon, and should only be used to punish those whose conduct is truly criminal; it should not be used against those who have merely made a human error. The task of the law should therefore be to identify those situations where a doctor or nurse has behaved in a way which demonstrates a criminally culpable state of mind. In NZ recently the law has failed to do this and has been used as a weapon against those who may be in no sense morally blameworthy. In New Zealand recently the law has failed to do this and has been used as a weapon against those who may be in no sense morally blameworthy. In this respect, NZ has been out of step with other comparable jurisdictions and has demonstrably failed to distinguish between cases where death is caused accidentally (through the making of an ordinary human error) and cases where it is caused criminally (through recklessness or culpable negligence). This is a surprising situation in a jurisdiction which has prided itself on its willingness to adopt a reformist legal agenda.