Last month saw the publication of the Independent review of gross negligence manslaughter and culpable homicide commissioned in January 2018 by the General Medical Council (GMC). Martin Hodgson investigates.
The reason for the review
The independent review was commissioned following the tragic death of a child and subsequent conviction for gross negligence manslaughter of the senior paediatric trainee involved in his care.
The GMC’s decision to seek the doctor’s removal from the medical register following her criminal conviction raised serious concerns in the medical profession and sparked claims that a “climate of fear” prevailed amongst doctors relating to such incidents. It was argued that an individual trainee doctor should not have to carry the blame for what many considered to be wider systemic failings. Concerns were raised that after an unexpected death “the system” is structured to apportion individual blame rather than to learn from events and many doctors referred to a loss of confidence in the GMC regarding the case.
With clear implications for how the law on gross negligence manslaughter and culpable homicide applies in medicine, and its relationship to the regulatory work of the GMC, the independent review was commissioned.
The review was chaired by Leslie Hamilton, a former consultant cardiac surgeon. The panel consisted of experts from a range of backgrounds, including individuals from the medical profession, patients, the legal system and from employers. Support was provided from the Crown Prosecution Service.
The stated aim of the working group was to encourage a “renewed focus” on a just and fair culture, on reflective practice, and on individual and systemic learning. To achieve its aim the panel gathered and analysed expert evidence from a wide range of sources. Due to differences in the legal position, a separate Scotland task and finish group was set up to advise the main working group on the issues as they applied in a Scottish context.
The panel points out that it was not within its remit to propose changes in the law, although it does state that many of those who provided evidence did express views that the law on gross negligence manslaughter and culpable homicide needed to be changed. Instead, the panel states that it was asked to look at the application of existing law and whether there needed to be changes to how it is currently understood and used.
The work was informed by the Williams Review, a policy review commissioned by the Secretary of State for Health looking at gross negligence manslaughter in healthcare in England.
The working group’s final report contains 29 recommendations.
Relating to the relationship of doctors with the GMC the review concludes that, although the criminal investigation and prosecution of doctors is extremely rare, the effect of the case which sparked the investigation has been “palpable and profound” across the medical profession. The panel acknowledges that many doctors feel “unfairly vulnerable” to criminal and regulatory proceedings if they make a mistake which leads to a patient being harmed. This, the panel states, has led to a breakdown in the relationship between doctors and their regulator, the GMC.
The panel calls for action to address this breakdown. It recommends that the GMC takes immediate steps to re-build doctors’ trust in its readiness to support them in delivering good medical practice for patients. This should include examining the processes and policies that have contributed to doctors’ loss of confidence and considering how the regulator can better support a “fair and just” culture.
There is particular emphasis on equality, diversity and inclusion.
The panel acknowledges that doctors from a black, Asian or ethnic minority background (BAME) may be particularly vulnerable and at an increased risk of prosecution under the law on gross negligence manslaughter and culpable homicide. It refers to the fact that BAME doctors are disproportionately represented in the GMC’s fitness to practise processes.
The panel concludes that the GMC should provide more support for doctors new to UK practice. It is also recommended that the regulator should work to ensure that NHS organisations better understand the importance of an inclusive culture within the workplace.
With regard to systemic failures, corporate accountability and embedding a just culture, the review points out that there are no examples of a healthcare service provider being successfully prosecuted for corporate manslaughter.
The review concludes that, where a doctor is being investigated for gross negligence manslaughter or culpable homicide, the appropriate external authority should scrutinise the systems within the department where the doctor worked. Where the doctor is a trainee this should include scrutiny of the training and education environment by the bodies responsible for education and training.
Further key recommendations relate to GMC policies and processes, reflective practice and supporting doctors.
The panel recommends that the GMC should:
be stripped of its right to appeal against medical tribunal decisions
work to help patients understand its role in regulating the medical profession within what is referred to as a “system under pressure”
review guidance on interim sanctions in cases involving clinical incidents, including those that result in criminal convictions, such as gross negligence manslaughter.
The panel believes that timescales for progressing fitness to practise cases to medical tribunals should be sped up. It also recommends that the government brings forward legislation to give the GMC greater discretion to determine which cases are appropriate for investigation and greater scope for disposing of fitness to practise cases consensually.
Lastly, the review calls for greater legal protection for doctors' reflective notes and urges the GMC to work with medical trade unions, medical defence organisations and other professional bodies to explore how doctors under investigation might be better supported in future.
The GMC have fully accepted all of the recommendations made in the report that relate to them.
Welcoming the report, Charlie Massey, Chief Executive of the GMC, said:
“We share this report’s desire for a just culture in healthcare, and acknowledge that we have a crucial role in making that happen. We are already making progress. Work is underway to address some of the key issues raised in this report but there is plenty more for us to do.
“One thing this report and its recommendations make clear is that a just culture requires a lot more than the actions of a single regulator.”
The GMC states that there needs to be greater consistency in the response to an unexpected death throughout the UK and acknowledge that doctors need to feel they are part of a “just culture” when and if things go wrong. They call for all relevant organisations to work together to improve the culture and system within with doctors’ function.
The independent review of gross negligence manslaughter and culpable homicide:
looks at how legal and regulatory systems, procedures and processes are applied in practice following an unexpected death and at how they can be improved to support a more just and fair culture
concludes that there has been a “breakdown in the relationship” between many doctors and the GMC and that fundamental reforms are needed to repair it
supports plans to take away the GMC's right of appeal against medical tribunal decisions and states that doctors under investigation should be given greater support.
The Independent review of gross negligence manslaughter and culpable homicide can be downloaded from the GMC website.