“I was deeply concerned about the unintended chilling effect on clinicians’ ability to learn from mistakes following recent court rulings, and the actions from this authoritative review will help us promise them that the NHS will support them to learn rather than seek to blame.” Jeremy Hunt
The Williams review of gross negligence manslaughter (GNM) in healthcare was published on 11 June. (1) Undoubtedly, it is difficult to ensure that those of us in healthcare remain accountable in common law, but at the same time feel able to work in the NHS. The review clearly wrestled with many aspects of this dilemma.
The hope is that the recommendations from the review will help reduce the climate of fear promoted by the wave of recent medical manslaughter prosecutions. (2) Centre stage is the intention that a new memorandum of understanding (MOU) will clarify what is considered to be “truly exceptionally bad” performance in healthcare. The high threshold required will be agreed between relevant bodies. The Crown Prosecution Service (CPS), police, coroners, the Care Quality Commission (CQC), Health Safety executive (HSE) and the Healthcare Safety Investigation Branch (HSIB) will adhere to it.
In 2015, campaigners raised serious concerns about the spike in prosecutions of healthcare workers and the deleterious effects of this on patient safety. (3) These concerted efforts laid the foundations for future action. (4) The urgency of the review in early 2018 was sparked by the national and global medical outcry over the Bawa-Gaba case and her erasure by the General Medical Council (GMC), as many believed she had been unnecessarily scapegoated for widespread system failings. (5) Many of the professional bodies tasked with contributing to the various investigations into medical GNM cases initially felt unable to offer us any assistance. We individually approached as many of the relevant bodies as we could, including the CPS, to try to find common ground. We met with some success which was considered by the review. Williams highlights the disquiet of many people over potential inappropriate inquisition. In the past five years there have been few successful convictions of healthcare professionals, yet 151 investigations have taken place. Interestingly, since the successful appeal in the case of David Sellu, these investigations have fallen to single figures. (1)
In order to reduce the negative effects of GNM on a “just learning culture”, the review recommends several ways to stop unnecessary referrals of doctors to the police. (7) There is going to be updated guidance for coroners in relation to GNM. Objective, early expert witness opinion must be obtained by those working in relevant, current clinical practice. The Academy of Royal Medical Colleges has rightly been tasked with developing and maintaining these standards. The creation of a “virtual specialist unit” of expertise for police should ensure that only the most relevant cases are prosecuted and that inappropriate ones are dropped at an early stage.
The recommendation for removal of the General Medical Council’s (GMC) right to appeal has been welcomed by many in the medical profession. It gives greater independence to the Medical Professionals Tribunal Service (MPTS) to make its own decisions. There will still be a right to appeal under the Professional Standards Authority (PSA), which should reassure bereaved families, as should plans for a network of medical examiners to look at all patient deaths not referred to a coroner. This may allow better scrutiny of deaths within the NHS, although the cost and practicalities could mean that scarce resources are swallowed up by unnecessary over-investigation. The review has been broadly accepted by patient groups. Patient Safety Learning said: “We welcome the emphasis on ensuring the right level of expertise in all investigative processes and a [better] understanding of system and human factors. ” (8)
Disappointingly, legal protection has not been given to doctors’ reflective notes in our courts. Systemic analysis of adverse events requires a transparent environment. Williams cites the difficulty of definition and problems with making reflective notes privileged solely in healthcare. This may reduce their value in professional practice, although they can be used defensively too. The CPS state reflections are “unlikely” to be used, although defence lawyers would advise their client that “unlikely” means “entirely possible.” The regulator now cannot request reflective material, but this doesn’t tackle the problem of reflections and multiple investigations, as all evidence is potentially disclosable to a criminal court. It is not difficult to predict what might happen to any of us when being investigated by an organisation determined to protect its own interests. (9) For now, we have simply been directed to reflect in a way which minimises the likelihood of it being used by prosecuting authorities. The apparent excess conviction rate of BME practitioners was also not specifically addressed by the review, although the regulators are currently investigating the surplus of referrals to them and new PSA guidance is awaited to tackle any bias.
The Williams review is a significant step forward for many: bereaved families, healthcare workers, investigators and all who have drawn attention to this for years. (3) A strong signal has been sent to the criminal justice system that only performance which is “truly, exceptionally bad” should be contested. A further review by Clare Marx into how gross negligence manslaughter and culpable homicide are applied to medical practice should keep up this momentum in order to rebuild lost trust and provide further solutions. (10) In conclusion, the Williams review provides a framework to ensure that patient safety is not compromised by inappropriate criminal prosecutions. (4)
Jenny Vaughan, Chair, Friends of David Sellu and consultant neurologist.
Competing interests: I am a medical law campaigner.
References:
- https://www.gov.uk/government/publications/williams-review-into-gross-negligence-manslaughter-in-healthcare
- http://www.manslaughterandhealthcare.org.uk/2018/02/20/the-bawa-garba-case-details/
- Friends of David Sellu: Esp Ian Franklin, Peter Taylor, Peter Mcdonald, Roger Kirby, Catherine Sellu, Miranda Harvie, Andrew Scurr, John Vogel, Simon Payne, Colin Mumford, Tom Rosenbaum, Matthew Dunckley, David Sellu and Jenny Vaughan ( chair). Independent lawyers: Matt Foot, Cassie Dighton, Oliver Quick and Ian Barker. Others: Robin Ferner, Paul Sigston, Mark Fraser and David Nicholl.
- https://publishing.rcseng.ac.uk/doi/full/10.1308/rcsbull.2016.60
- Jha, S. To Err Is Homicide in Britain: The Case of Dr Hadiza Bawa-Garba. 2018 3 April 2018]; Available from: https://www.medscape.com/viewarticle/892210.
- https://www.rsm.ac.uk/events/urh08
- https://www.bmj.com/bmj/section-pdf/974500?path=/bmj/360/8147/This_Week.full.pdf
- https://www.patientsafetylearning.org/blog/reflecting-on-the-bawa-garba-case
- http://www.dailymail.co.uk/news/article-3174741/A-scalpel-hospital-buried-evidence-clear-surgeon-jailed-patient-s-death-40-year-exemplary-career.html
- https://www.gmc-uk.org/news/media-centre/media-centre-archive/dame-clare-marx-to-lead-medical-manslaughter-review