The claim is that because doctors are already deemed to be ‘shielded’ by law, and are not liable in court (the notion of ‘shielding’ is discussed in a later post), if they are charged with manslaughter the charge will probably be thrown out. This is a very concerning and damaging argument for the criminal justice system to make, which is therefore worthy of scrutiny. The first step in that scrutiny is to define the nature of ‘shielding’ in UK law.
What does ‘shielding’ mean in law?
The word shielding derives from the common law doctrine of ‘shielding’ (or defence) from civil claims. Historically, only a very few (usually public servants) were protected from civil claims, and shielding from civil claims is still rare in modern practice. There are three ways of shielding someone from civil claims in the law.
The commonest way of shielding someone from civil claims is by making a contractual promise to do something that will prevent or ameliorate the effect of the claim, so that if the claim is made it will not succeed. Examples of this are a promise to repair your own car if you make a claim against the car manufacturer, or a promise to cover the costs of your own care if you make a claim against the NHS, for example. It is the commonest form of shielding.
A second way of shielding someone from civil claims is by making a criminal law offence. Crimes are excluded from civil claims in law because they are meant to be for the protection of society as a whole, rather than for the protection of the individual criminal law defendant. If the defendant is charged with a crime, they cannot be sued civilly as a result. Criminal charges do not have to be made by the police, or any other person, as long as the defendant is aware of the charges.
A third way of shielding someone from civil claims is by treating the civil defendant differently in law, for example by appointing a legal representative to act on their behalf. This is especially common in the law on wills, where a will maker can appoint a solicitor or other close friend and relative to serve as their executor in preference to the solicitors and relatives of the deceased. So if you are the executor of a deceased’s will, you cannot be sued for civil damages by the deceased’s family, for example.
One of the most common ways of shielding someone from civil claims, whether through
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