Guest Author: Nathan Hodson, Foundation Doctor, University Hospitals of Leicester.
A rapid policy review of medical gross negligence manslaughter was announced by Secretary of State for Health and Social Care, Jeremy Hunt, in February 2018. Last week, barely four months later, Professor Sir Norman Williams delivered the report. Its remit was limited to investigating the understanding of the processes and law in gross negligence manslaughter, its relationship with reflective practice, and whether there were any lessons for regulators to learn.
The report is full of practical recommendations and reassurance for all stakeholders, reflecting the genuine impetus behind this swift review. While its use of secondary references (including undergraduate revision materials on p27) and description of an “Academy of Royal Medical Colleges” (p47) – as opposed to the Academy of Medical Royal Colleges – perhaps evidence the report’s fast turnaround, this is surely a testament to the Department for Health and Social Care’s efforts to reassure the medical workforce quickly. However, superficial evidence of haste is, I will suggest, mirrored in the report’s shortage of meaningful procedural change which is unlikely to reassure doctors that gross negligence manslaughter law can be applied fairly.
Background to the Williams Review
The medical profession’s concern about gross negligence manslaughter peaked in February 2018. Seven years earlier Jack Adcock had tragically died in Leicester Royal Infirmary whilst under the care of Dr Hadiza Bawa-Garba. At her trial the jury found that her conduct had been “truly exceptionally bad”, even taking into account “all the circumstances”, amounting to gross negligence manslaughter (and resulting in a sentence of 24 months suspended for 24 months).
In June 2017 The Medical Practitioner Tribunal Service (MPTS) imposed an immediate suspension from the medical register on Dr Bawa-Garba, lasting 12 months. However, the General Medical Council (GMC) appealed this decision to the high court and, on January 25th 2018, Ouseley J found that the Medical Practitioner Tribunal had erred in reaching “its own and less severe view of the degree of Dr. Bawa-Garba’s personal culpability” and that this was “a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury”. Dr Bawa-Garba was to be erased from the medical register (although an appeal is under way).
These systemic failings resonated most strongly with junior doctors who felt that the conditions Dr Bawa-Garba was working under, including a malfunctioning IT system, an understaffed team, and a new department with no induction, could impair any doctor’s performance. Many junior doctors, recently politicised by strike action, identified strongly with Dr Bawa-Garba. In fact the perceived attack on her became emblematic for an embattled generation of young, largely female, increasingly ethnically diverse junior doctors. Their solidarity was epitomized by the hashtag #IAmHadiza.
GMC to lose right to appeal MPTS decisions
The major outcome of the Williams Review is that the GMC will lose its right to appeal MPTS decisions, a right which none of the other regulatory bodies under the Professional Standards Authority (PSA) hold. The PSA has the right to appeal fitness to practice decisions relating to any healthcare professional, but a significant proportion of medical appeals have been made by the GMC. Many doctors criticized the GMC decision to appeal against the suspension of Dr Bawa-Garba and the BMA argued that giving the GMC the right to appeal decisions made by MPTS, which is a statutory subcommittee of the GMC separate from the GMC’s investigatory arm, “risks undermining doctors’ confidence in the independence and fairness of the Medical Practitioners Tribunal Service”.
The panel agreed, suggesting that removing the GMC’s right of appeal “will help address the mistrust of the GMC amongst doctors and contribute to cultivating a culture of openness that is central to delivering improved patient safety.”
Some would consider this a roundabout way of improving patient safety, especially given that the report draws attention to the high success rate of GMC appeals, acknowledging that “it can be argued that these successful appeals have improved patient safety.” In his response to the Williams Review, GMC Chair Professor Sir Terrence Stephenson argued that 17 out of their 18 appeals involved cases of sexual misconduct or dishonesty, implying that the right of appeal is central to protecting public confidence in the medical profession and largely unrelated to gross negligence manslaughter. Nevertheless, Jeremy Hunt’s comments on the report noted that the overlapping function of the PSA gives him confidence that “there would be no gap in the law where regulatory action is being taken as a result of a serious criminal conviction”.
While it might be difficult to imagine doctors regretting the removal of this power from the GMC, it is far from certain that it will bring about the “just and learning culture” the panel intended. It may be unfair for the GMC to get a ‘second bite of the cherry’ when it comes to tribunal decisions, but doctors are unlikely to feel any less threated by the prospect of a PSA appeal. Furthermore, the GMC’s investigatory arm will continue to call for harsh sanctions at the MPT so the relationship between doctors and the GMC will remain adversarial. The main way this decision will impact medical culture is as a public demonstration that even the GMC is accountable to somebody.
Reflective Writing
Another challenge to the creation of a “just and learning culture” concerned the legal status of junior doctors’ reflective practice. The report recommended the GMC lose its power to access reflective writing from a trainee’s portfolio during fitness to practice proceedings. Many doctors had come to believe that Dr Bawa-Garba’s reflections had been used against her by the GMC. Although legally possible for the GMC to request access to any necessary materials for fitness to practice tribunals, the GMC did not in fact use Dr Bawa-Garba’s e-portfolio against her. Nevertheless, the panel recognised “concerns among doctors that this power could be used to force them to provide reflective material that could be self-incriminatory” and reported that some doctors were “so concerned that they are no longer reflecting on their practice or recording such reflection”.
The risk this presents to the training of junior doctors is already widely understood and the GMC has previously promised never to use this power. However the CPS refuses to rule out using reflective practice against a doctor. What the GMC and BMA suggested was for reflections to gain a privileged status in law such that they could not be used in prosecutions either. The report declined to recommend any such change: “[w]here any evidence is material to a case, it is right that it should be considered”.
The Williams Review’s delicate balancing act settled upon removing GMC access to e-portfolio reflections to protect learning and preserving CPS access in order to ensure justice. But, by pointing out that reflections are more likely to be used by the defence than the prosecution, the report perpetuated the sense that the reflection is a witness statement (with exculpatory potential), rather than a personal learning process. Ultimately, the distinction between evidence that can be used by the CPS and evidence that can be used by the GMC may not be sufficient to reassure a doctor wondering how frankly to engage with reflective learning after a serious incident.
Discrimination
The report touched upon concerns that a disproportionate number of black, Asian, and minority ethnic (BAME) professionals who face fitness to practice proceedings or trial for gross negligence manslaughter, a multifaceted issue which the GMC has commissioned Roger Kline and Doyin Atewologun to investigate. The report recognises that the proportion of fitness to practice panels including BAME people has increased from a low of 2% in 2000 to 80% by 2015, but also recommended that “Wherever possible the investigation team should include [BAME] representation”.
The puzzling implication of this is that it will somehow result in these investigations treating BAME people better. Of course the authors of the report do not intend to convey that non-BAME people cannot be trusted to investigate BAME people fairly, nor that BAME people would ‘look after their own’ (and in any case, there is superb diversity among BAME people in the NHS). It seems most likely that the panel merely mean to offer reassurance that concerns about discrimination are being heard.
Changing the law
However, these concerns are sustained by deficiencies in the law in gross negligence manslaughter. There is room for an element of subjectivity in asking a jury whether conduct was “truly exceptionally bad” and “so bad … as to amount to a criminal act”, tests that could be described as circular. In fact, the conviction of another BAME doctor (Sellu [2016] EWCA Crim 1716) was recently overturned because the judge was found to have misdirected the jury, only asking them whether the surgeon’s failings had been “gross or severe”. This shows just how easy it is to misinterpret this law and why doctors, BAME or otherwise, are fear there may be a lack of transparency.
The report recommended the collaborative creation of an explanatory statement to improve consistency in the understanding of gross negligence manslaughter and, theoretically, reduce the number and length of distressing and distracting investigations. This is a welcome recommendation with great potential and its wide dissemination could help to restore doctors’ confidence in the law.
However even the best explanatory statement can only be as good as the law that it is explaining. For now, gross negligence manslaughter law remains the same, but there are increasingly calls for substantive legal change which may involve England and Wales embracing elements of the law in Scotland. This might mean that the Director of Public Prosecutions would have to approve all medical gross negligence manslaughter prosecutions or that the law would incorporate an element of recklessness or intent. There are ways that the law can change to regain the confidence of the medical profession without becoming excessively permissive.
Although from the outset this report was unable to propose legal change, the many creative ideas and connections that have emerged reflect a desire to improve relations between professionals and regulators. But perhaps due to its limited scope and timescale it has penalized the GMC without offering meaningful changes to the investigations doctors may face. Junior doctors shaken by the Bawa-Garba case are unlikely to feel reassured about the fairness of the system in light of this report.
Details and a full version of the Professor Sir Norman Williams Review can be found at this link.
Competing interests: None.