RECENT disturbing cases make this a sensitive juncture in which to be considering culpable homicide and medical blunders. But the moment will always be opportune for common sense and clear-thinking to be applied – particularly if it it is ultimately to the benefit of patients.

Professor David Galloway, president of the Royal College of Physicians and Surgeons Glasgow, has that benefit in mind when he advocates that doctors, dentists and surgeons should not be charged with culpable homicide over medical blunders – assuming (as of course we must) that they did not intend to harm the patient.

“Intention” is the key consideration here, just as it often is in Scots law. Criminal procedure involving preventable death is complex and much occupied with questions of “mens rea” (guilty mind; mental intention to commit a crime). It need not be present for charges to be brought.

The problem is that accidental death in a place of care is hard to consider in terms of “crime”. There may be poor decision-making. There may be pressure caused by systemic failure. There may even be negligence, which is never acceptable. But it is unlikely that anyone is intending to commit an accident.

A second problem with criminalising medical failure is that, apart from the “blame culture” that Professor Galloway identifies, it can create a climate of fear in situations where sometimes risk is necessary for success. This is not good for doctors. And what is not good for doctors is not good for patients.

Serious, wilful negligence must be punished, of course. But it is hardly a commonplace, and is often problematic when adduced in criminal cases. The ongoing furore in England over the manslaughter (England’s equivalent of culpable homicide) conviction, on grounds of gross negligence, of Dr Hadiza Bawa-Garba is a case in point.

A specialist registrar in year six of postgraduate training, she was the most senior doctor present when a child died amidst problems with blood test availability, IT breakdown, and a busy ward. The case has raised the question of how systemic failure is considered in such instances. As the system stands, blame is simply placed on individual practitioners.

By the same token, criminal charges have been ruled out in a case involving a consultant gynaecologist in Dundee and the distressing death of a baby. An ongoing hearing has been told of repeated warnings that were ignored.

So these are not simple matters. But Professor Galloway is right, in our view, to have raised this issue. It will provoke debate, which is always healthy and which will, as in pressured medical situations, benefit from cool heads, advice from the experienced, and a willingness to explore better ways of proceeding.