No recent case has brought the fear of criminalisation in healthcare into sharper focus than that of Hadiza Bawa Garba. The ramifications were far reaching. The events that followed her appearance before the Medical Practitioners Tribunal Service (MPTS) led to the former Secretary of State for Health and Social Care Jeremy Hunt establishing a rapid review of the application of Gross Negligence Manslaughter law in healthcare. That review, led by Norman Williams, reported in June 2018, and the government accepted its recommendations in full.
The full acceptance from the government was of course welcomed, and the medical profession needed that acknowledgement. But what has changed in England and Wales since the review?
Williams recommended that the General Medical Council lose its power to appeal Fitness to Practise decisions. This is something the Medical Protection Society has continually argued for as it is detrimental to the interests of healthcare professionals and unnecessary as the Professional Standards Authority’s has the authority to appeal decisions.
The Government committed to removing this power in its response to the review, but the General Medical Council continues to challenge decisions and will do so until legislative changes are made to the Medical Act. This statutory power should be removed by a simple and swift legislative measure, something we are pressing for in our “Priorities for the new Government“ paper.
In 2018, MPS also instigated discussion around the current legal test for convicting healthcare professionals of Gross Negligence Manslaughter—we believe the bar is set too low and this is resulting in good doctors being charged and criminalised for unintended mistakes or system failures. Everyone loses in such cases. A family has lost a loved one; a doctor risks losing their career and liberty, and our NHS, already under considerable pressure, potentially loses a valuable doctor. Fear of prosecution in healthcare will also damage an open, learning culture and this is not in the public interest
In Scotland, there is no offence of Gross Negligence Manslaughter and we believe the prosecution of doctors in similar circumstances to those of Bawa-Garba are unlikely. We consider both the law and its application in Scotland, to be more robust and better suited to determining the culpability of doctors in the event of patient death, than the law and its application in England and Wales.
In New Zealand the authorities have gone as far as saying that prosecutions of doctors are not in the public interest as this approach drives clinical errors underground and subverts initiatives to learn from errors and improve patient safety.
In our “Priorities for the new Government” paper, we are calling on the new Conservative government to explore bold options for law reform in respect of Gross Negligence Manslaughter in a healthcare setting.
Recent opportunities to reform the law in England and Wales have not been seized and there has never been a more important time for reform.
Rob Hendry is medical director at the Medical Protection Society (MPS).
Competing interests: Membership with MPS provides the right to request access to expert advice and support on clinical negligence claims, complaints, GMC investigations, disciplinaries, inquests and criminal charges such as gross negligence manslaughter. Members also have the right to request indemnity for claims arising from professional practice.