Reviewing gross negligence manslaughter in a healthcare setting
Details
In November 2015, the paediatric specialist, Dr Bawa-Garba, was convicted of manslaughter by gross negligence. The Medical Practitioners Tribunal (MPT) suspended her but the GMC appealed and in January 2018 the High Court ruled that she should be erased from the medical register. She has appealed to the Court of Appeal.
The case attracted significant press attention and elicited comments and responses from the medical profession and indeed Jeremy Hunt. Two reviews into manslaughter in the healthcare context were commissioned. The first, by Professor Sir Norman Williams has just been reported.
Review recommendations
The review highlights a key issue with current practice relating to the offence including that there are inconsistencies in its investigation and prosecution which need to be addressed. It has made a number of recommendations which it hopes will address this issue and provide reassurance to healthcare professionals, patients, and their families.
Key points and recommendations include:
GMC right of appeal
The GMC should lose its right to appeal MPT fitness to practise decisions. This aims to address mistrust which has built up between the body and doctors.
Reflective material
The GMC should no longer require registrants to provide reflective material when investigating fitness to practise cases. This aims to promote continued open and honest reflection. Consideration was given to applying legal privilege to the notes to ensure that they could not be used in legal proceedings at all. However this was considered unworkable, and inappropriate, given that a similar exemption is not provided to other professionals. The review also recommends that the Royal Colleges update their guidance on how reflection should be carried out to ensure a consistent approach across all healthcare professional groups.
Guidance to regulatory and prosecutorial bodies
Existing guidance should be reviewed and updated. A working group involving representatives from the CPS, coroner services, treasury counsel and healthcare defence organisations will be set up to draft a clear statement of the law in this area. This should ensure that there is a clear understanding of the bar to be reached before a prosecution for gross negligence manslaughter is pursued. The aim is that criminal investigations should only happen where conduct has been ‘truly exceptionally bad’.
Incident context
Guidance should also ensure that the context in which an incident occurs is properly considered. Systemic and human factors issues should be explored and taken into account.
Bereaved families
Families should be provided with timely information, be supported, and given the opportunity to be actively involved in the investigatory and regulatory process. This duty should apply to all bodies involved in the investigation and regulatory action.
Diversity
To address concerns that disproportionate numbers of criminal and regulatory investigations proceed against black, Asian and minority ethnic professionals, the review supports the PSA’s intention to introduce equality and diversity standards for professional regulators, and recommends that regulators ensure that fitness to practise panel members receive equality and diversity training.
Expert witnesses
Steps should be taken to improve the quality and availability of experts, following concerns highlighted in recent cases. Steps to do this include the Academy of Royal Medical Colleges leading work to deliver higher expert standards including ensuring that experts have relevant clinical experience and, ideally, that they are in current clinical practice in the area in question. Healthcare professionals should be encouraged and supported to become expert witnesses, and professional regulators should recognise expert witness work for continuing professional development purposes.
Police expertise
The review has made recommendations to increase levels of police expertise in investigating gross negligence manslaughter in healthcare settings. This includes consolidating existing expertise, updating guidance and embedding a requirement that systemic and human factors issues are properly considered.
Automatic erasure
The review recommends that gross negligence manslaughter should not constitute grounds for automatic erasure.
Next steps
Dr Bawa-Garba’s case is awaiting a hearing in the Court of Appeal, due to be heard next year. A second review is also in progress by the GMC led by Dame Clare Marx. This is expected to report by the end of 2018 and will look at how the offences of gross negligent manslaughter (England and Wales) and culpable homicide (Scotland) are applied to medical practice.
