The General Medical Council (GMC) has just published the 29 final recommendations of the long-awaited review into how gross negligence manslaughter and culpable homicide are applied to medical practice. This was an independent review chaired by consultant cardiac surgeon, Leslie Hamilton, and undertaken after widespread criticism of the GMC’s handling of the case of Hadiza Bawa-Garba. Improving how staff, patients, and their relatives are dealt with in relation to serious, untoward deaths formed a significant part of the recommendations. The Doctor’s Association UK, among many other organisations, has been calling for a truly “Just Culture” to be adopted by the NHS for staff and patients alike as part of its Learn Not Blame campaign, and broadly welcomes the report.
Only about 16 cases of “untoward deaths” in healthcare per year involve a police investigation and of these just 6% proceed to prosecution. These small numbers, however, hide their extraordinarily toxic impact on healthcare professionals, leading in many cases to lost self-confidence in the workplace and mental health problems. All the recommendations are likely to be of value for improving the current application of the law in this area. Having been involved closely in two recent cases of gross negligence manslaughter, I welcome the emphasis on more independent oversight of the local investigation process, as well as singling out human factors, which must now be assessed in any analysis of unintentional error.
Two of the most important and practical recommendations are that no doctor should find themselves subject to a criminal investigation, without their workplace environment also being carefully examined by national inspecting bodies, such as the Care Quality Commission. In parallel, the review also recommends improved support for patients’ relatives, who should be allocated a consistent member of hospital staff to keep them informed and involved, and to help them navigate the investigative process in the event of a possibly untoward death. The emphasis on hospitals getting their local processes right, and involving appropriately trained individuals, is key to reducing the blame culture, as well as reducing the risk of recurrent adverse events. The call for support of doctors returning to work after prolonged absence, as in the Bawa-Garba case, and support for those called to attend inquests are also very important.
The review looked at the whole system, from the local investigation stage through to the coroner’s inquest, including the role of the police and prosecuting authorities, and finally the GMC. The report shows how a number of changes need to be made to the current system to ensure greater fairness and consistency for those working in healthcare, while ensuring families and relatives get the answers they need. There are specific recommendations to ensure that there is early oversight by an independent, senior NHS clinician who can offer guidance to both the Trust and patients’ relatives on the severity of any breach of care in a potentially avoidable death. Similarly, individual police forces rarely see one of these cases, so the recommendation for extra oversight of coronial referrals to the police by the Chief coroner is helpful. Healthcare workers should not, of course, be above the law, but this recommendation ought to ensure that only the cases where doctors have been wilfully dishonest or reckless will progress as far as the court, and that there is a better consistency of approach.
The “Williams Review”, a forerunner to this review, also proposed improvements to the expert witness system. Leslie Hamilton and his panel have gone further by calling for at least two expert opinions, both of whom must be in active relevant clinical practice, in cases deemed serious enough to warrant criminal sanction. The GMC are tasked with taking a more active part in the processes of recruitment and/or accreditation of medical experts and making selection more transparent. Proposed legislative changes to the GMC’s fitness to practice process should mean that it will undertake fewer and more streamlined investigations. This should also help to restore the relationship between the GMC and the medical profession, as will the loss of the GMC’s right of appeal against decisions by medical practitioners tribunals. An important piece of work going forward is the GMC’s role in helping patients and the public understand how human errors can occur in a system under pressure as the public are now much more aware of this as a reality and it affects their confidence in healthcare. Other important recommendations include a call to consider legal privilege for reflective notes which have helped healthcare workers learn and understand what has gone wrong.
In the past 10 years only BAME doctors have been convicted of gross negligence manslaughter, although the numbers are too small to conclude that there is racial bias. However, the review documents show that they are more vulnerable to complaints, and subsequent investigation by the GMC. Again, there does not appear to be a racial bias of the GMC process, but it would be important to know if BAME doctors actually receive more severe sanctions. The review calls for greater support for BAME doctors which should help to improve their confidence to raise concerns when things go wrong. The GMC faces particular challenges in how it is perceived by BAME doctors with respect to fairness and we look forward to more progress in this area. The review also singles out those who do not appear to be part of a particular group, so called “outsider bias” as being possibly more vulnerable to investigation as they appear to be less familiar with the “unspoken rules of medical practice in the UK.”
This report restates the crucial importance of patient safety. There is simply no evidence that criminalisation of unintentional error improves this. Indeed, the opposite is more likely to be true. The Bawa-Garba case has caused widespread fear amongst doctors who feel that they too, are now just one honest mistake away from a criminal conviction. This climate of fear and blame is toxic to patient safety. Moreover, the loss of trainees abroad and to other professions, coupled with senior doctors retiring early, is creating an unsustainable health service with a worsening blame culture. The panel specifically draws attention to the overall aim of the review, which is to help usher in “a culture which recognises accountability, but accepts that when patient safety is affected it is rarely down to an individual.” This aligns with The Doctor’s Association UK’s “Learn Not Blame” campaign and that the criminalisation of unintentional error in healthcare is not in the public interest.
The broad implementation of the many recommendations of this report will reduce the climate of fear and it must be hoped that we can all work towards a learning culture across healthcare, be it public or private, that prioritises safe patient care.
Jenny Vaughan is a consultant neurologist and medical law campaigner. She is the law and policy lead for the Doctor’s Association UK and co-founder of Medical Manslaughter. She was chair of the Friends of David Sellu FRCS and acted as the medical lead in the successful overturning of his conviction for gross negligence manslaughter in November 2016. She has also been an active supporter of Hadiza Bawa-Garba for more than two years, and was awarded The BMJ‘s prize in 2018 for speaking “Truth to Power.” Twitter @DrJennyVaughan and @TheDA_UK
Competing interests: Nothing further to declare.
- General Medical Council. Independent review of gross negligence manslaughter and culpable homicide. Jun 2019.https://www.gmc-uk.org/
- The GMC appealed the original MPTS verdict, appealing to the High Court to have Dr Bawa-Garba struck off the medical register. The High Court found in favour of the GMC and Dr Bawa-Garba was erased. This decision was reversed in the summer in the Court of Appeal. https://www.judiciary.uk/wp-content/uploads/2018/08/bawa-garba-v-gmc-final-judgment.pdf
- All information and a summary of the case (including information on the hospital internal report findings can be found at www.dauk.org and of www.medicalmanslaughter.co.uk
- The Williams Review commissioned by then Health Secretary Jeremy Hunt recommended that the GMC lose their right to appeal MPTS verdicts in the court. We are currently awaiting the necessary legislative changes to amend the Medical Act. https://www.gov.uk/government/publications/williams-review-into-gross-negligence-manslaughter-in-healthcare).
- Nicholl et all BMJ 2019;365:1718