The fear of potential criminal investigation felt by many healthcare professionals in the wake of an unexpected patient death again comes under the spotlight in a new report.
Almost a year on from the publication of the government-commissioned Williams review into gross negligence manslaughter in healthcare, this new report - 'Independent Review of Gross Negligence Manslaughter and Culpable Homicide' - was commissioned by the GMC following the Dr Bawa-Garba case and focuses on what can be done to improve the local, coronial, professional regulatory and criminal processes which can follow an unexpected death.
We look at the report's key findings and some of the changes it envisages in the ongoing quest for a true 'learning not blaming' culture.
What does the report say?
The trigger for this review was the case of Dr Bawa-Garba, the paediatric trainee whose gross negligence manslaughter conviction was followed by an attempt by the GMC to get her removed from the medical register, despite many fellow clinicians feeling that the real fault lay with wider systems failings within her working environment.
Chaired by a former cardiac surgeon, Leslie Hamilton, the review highlights how vulnerable doctors feel to being drawn into a criminal system which many perceive as having 'little understanding of, or interest in, the realities of medical practice in healthcare systems under pressure'.
The review's remit was 'intentionally wide', spanning the full range of processes which might be engaged following an unexpected death, including local investigations, inquests, professional fitness to practise proceedings and criminal investigations, which can sometimes stretch over many years.
With its 29 recommendations, the report covers a lot of ground, but some of the stand-out points to take from it are:
Law on gross negligence manslaughter
One of the factors fuelling the fear of criminal prosecution amongst healthcare professionals is that, under the law as it stands, you can be convicted of gross negligence manslaughter without there having been any intention to cause harm, provided a jury decides that your act or omission was 'truly, exceptionally bad'.
Although the review's remit did not extend to the question of whether the law should be changed, it echoes the Williams review's call for an agreed explanatory statement to provide clarity/consistency of understanding about the existing law on gross negligence manslaughter. The CPS has therefore recently updated its guidance on gross negligence manslaughter to confirm that the elements of the offence of gross negligence manslaughter apply to cases of medical manslaughter.
What about the option of prosecuting the provider organisation instead? Whilst noting how few healthcare-related corporate manslaughter cases there have been, the report concludes that calling for more such prosecutions is not the answer because 'shifting the blame in order to criminalise managers' would not help.
Joining the steady stream of reviews over recent years calling for more effective, 'learning not blaming' investigations, the report also underlines that poor initial handling of incidents at local level can make it more likely that a case will ultimately result in criminal prosecution, with particular importance being placed on the need to engage effectively with families right from the start. It is our experience however, that there are often practical difficulties in this type of engagement where there is also a criminal investigation.
With the national serious incident framework still under review, we could see future guidance reflecting this report's recommendation that external scrutiny of local investigations should include specific focus on the importance of looking at 'human factors' issues.
A coroner who believes there may be grounds for criminal investigation in relation to a death has the power to refer the matter to the police where further investigation is warranted. This report flags the variation in practice amongst coroners in terms of when a police referral is made, with some of these cases having little prospect of prosecution for a criminal offence.
Acknowledging that the local nature of the coroner service plus the rarity of potential gross negligence manslaughter cases makes it difficult for individual coroners to gain experience in this, the report not only supports the recommendation made by the Williams review about improving current guidance to coroners about gross negligence manslaughter, but goes further by recommending that any cases which a coroner feels might meet the threshold for this should first be discussed with the Chief Coroner's Office before any decision is made to notify the police.
The report also underlines the importance of healthcare providers offering adequate support to their staff in relation to the inquest process.
When should there be a criminal investigation?
The lack of healthcare-related gross negligence manslaughter cases can be problematic for the police, who can come under pressure from families and the press to pursue an investigation whenever there are allegations of criminal conduct in a healthcare setting, but may lack the experience or confidence needed in deciding whether there should be an investigation.
The report therefore recommends that the police should have early access to appropriate independent medical advice to provide an initial filter to help them decide whether an investigation is warranted. To achieve this, the report suggests running a pilot on the feasibility of high level Responsible Officers coordinating the provision of suitable independent advice at the initial stages of a gross negligence manslaughter investigation, including helping to identify a clinician in the relevant speciality, but from a different region, to provide the advice.
The report also echoes the recommendations made in the Williams review about the importance of external scrutiny (e.g. via the CQC) of the systems in place at the provider organisation where the person being investigated for gross negligence manslaughter was working at the time, to ensure that systemic and human factors are identified and addressed.
Fitness to practise process
The report describes the medical profession's loss of confidence in the GMC following the Dr Bawa-Garba case as being 'at the heart of this review' and makes a number of recommendations aimed at helping the GMC tackle this issue, including the need to find ways of better supporting doctors under investigation.
It also urges the government to press ahead with the legislative changes needed to implement the Williams review recommendation about removing the GMC's right to appeal decisions of the Medical Practitioners Tribunal, and recommends that the government should 'at the earliest opportunity' progress its plans for reforming healthcare regulation generally, so as to give the GMC more discretion in deciding which cases are appropriate for investigation and greater scope for disposing of fitness to practise cases consensually.
Although new guidance on the creation and disclosure of doctors' reflections ('The Reflective Practitioner') has been produced since the Williams review alongside assurances from the GMC that it will never require disclosure of such material, concerns amongst doctors about how reflective material could be used as evidence against them is still very much a hot topic.
Whilst the 'Reflective Practitioner' guidance/toolkit is aimed at supporting doctors' learning whilst at the same time limiting the potential relevance of documented reflections in other proceedings, it remains the case that such material is not protected from disclosure (e.g. in criminal proceedings) by legal privilege. On this point, this report goes further than the Williams review (which found that it would not be workable for such material to attract legal privilege) in suggesting that Parliament should consider how these reflections could be legally protected from disclosure.
Where a healthcare professional is facing investigation over clinical matters, the opinions of independent experts regarding the standard of care provided will often be pivotal to the outcome of the case. However, the review heard repeated concerns about the quality, relevance and objectivity of expert evidence.
Building on the recommendations made by the Williams review about work needed to promote/deliver high standards and training for those providing expert opinions, this report recommends that doctors should only provide an expert opinion to the coroner, police, CPS, GMC or criminal court on matters which occurred whilst they were in active and relevant clinical practice. It also recommends that GMC decisions to bring misconduct cases about clinical competence to the Medical Practitioners Tribunal Service should require the support of two expert opinions.
The recommendations made in this long-awaited report will be well-received by the majority of medical practitioners, but are unlikely to be universally accepted by all stakeholders.
Any resulting reform will necessarily be piecemeal, fragmented and incremental, as may be expected when dealing with such complex systems and serious subject matter. The report itself acknowledges that other organisations (e.g. the police/coroners/government) cannot be forced to act, but the hope is that they will give 'serious consideration' to its recommendations. There are accordingly no specific timescales for implementation. There is also no centralised source of information as to implementation across stakeholders, causing difficulties for those who wish to monitor progress.
It must be borne in mind that the fate of Dr Bawa-Garba split opinion amongst the general public, meaning there may not be overwhelming high level political impetus for rapid substantive reform amongst parliamentarians. The fact is that, despite the then Secretary of State for Health and Social Care accepting the Williams review recommendations in full in June 2018, the GMC's appeal power remains on the statute books.
As with the Williams review before it, the pace and extent of reform is dependent on action by a disparate group of stakeholders in the healthcare and justice systems. For those who favour reform, the risk is that, as the flashpoints of the Bawa-Garba saga fade into the background, momentum and pressure on stakeholders to implement recommendations in a timely fashion may be lost.
We will continue to monitor the shifting legal landscape in this area with interest.
How can we help?
Our specialist national team advises a wide range of providers and individuals operating in the health and social care sector who are facing criminal and/or regulatory investigation, including:
- Advising/supporting individuals and providers during criminal investigations into allegations of assault, wilful neglect, gross negligence manslaughter and corporate manslaughter;
- Providing legal advice and representation in interviews under caution with the police;
- Attending and advising organisations in Incident Coordination Groups convened following a serious untoward incident;
- Strategic advice to reduce the risk of prosecution;
- Defence of criminal prosecutions where charges are brought;
- Advising and representing providers in inquests where the evidence may suggest an individual or organisation is criminally responsible for the death;
- Training to Board members and managers on dealing with adverse incidents and corporate manslaughter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.