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Williams review on gross negligence manslaughter in healthcare

19 June 2018

As a result of recent headline cases, on 6 February 2018, Jeremy Hunt MP, the Health Secretary, announced a rapid policy review on gross negligence manslaughter and how it related to the health profession. This review, led by Professor Sir Norman Williams, reported on 11 June 2018 and it is widely reported that Jeremy Hunt MP has accepted all of the recommendations made within the report.

Whilst the review has made some suggestions aimed at improving investigations and decision-making in this area, its most significant recommendations address the current tensions between the healthcare profession and the General Medical Council (GMC) around fitness to practice proceedings.

It is important to reiterate that this review did not look at individual cases – no matter how high profile – and the conclusions restated the need for the medical profession to be held to account in accordance with the rule of law, whilst ensuring that the law recognised “the complexity of modern healthcare and the stressful environments in which professionals work…”

Recommendations

Despite the relatively narrow remit, the report gives recommendations about other elements which interact with gross negligence, particularly the regulatory regime in which doctors operate.

No substantive changes to the law on gross negligence manslaughter were proposed.

A number of recommendations were made:

  1. An agreed and clear position on the law on gross negligence manslaughter

    The review recommended a working group should be established to “set out a clear explanatory statement of the law on gross negligence manslaughter.” Organisations, including the Director of Public Prosecutions, should produce or update guidance in light of this statement of the law.

  2. Improving assurance and consistency in the use of experts in gross negligence manslaughter cases

    Issue was raised about the early obtaining of expert evidence as the Crown Prosecution Service (CPS) conceded that this evidence is usually determinative of whether charges are brought. The review recommended that healthcare professionals with relevant clinical experience should receive training – from their Royal Medical College and others – about giving expert opinion and support should be received in respect of this, as well as it contributing towards the continuing professional development process.1

  3. Consolidating expertise of gross negligence manslaughter in healthcare settings in support of investigations

    The Chief Coroner’s guidance, Law Sheet No. 1 should be updated in light of the explanatory statement and police forces should consolidate expertise in relation to gross negligence manslaughter through the creation of a specialist unit. A memorandum of understanding should be agreed between the police, the CPS, the Care Quality Commission (CQC), the Health and Safety Executive (HSE) and the Healthcare Safety Investigation Branch (HSIB) in relation to the investigation of deaths in a healthcare setting, noting the impact which simply an investigation for gross negligence manslaughter can have on a professional.

  4. Improving the quality of local investigation

    The CQC should be informed whenever a gross negligence manslaughter charging decision is sought from the CPS so that they can consider a separate investigation of the healthcare provider.

    “There must be a thorough local investigation of all unexpected deaths in a healthcare setting, both in the NHS and in the independent sectors.” Initially this will be led by providers themselves; however the establishment of the HSIB was given firm backing by the review.

  5. Reflective material

    Prosecuting authorities and professional regulators were clear that they “would be unlikely to use a healthcare professional’s reflective material either for a criminal investigation or in considering a registrant’s fitness to practise.” Despite calls to provide legal privilege to these documents, the review concluded that this was impractical and unworkable. The review recommended, however, that the GMC have its power to require information curtailed to exclude reflective material.

  6. Fitness to practise decisions
  • Right to appeal – the GMC should no longer be able to seek to appeal a decision of the Medical Professionals Tribunal Service to the High Court; such appeals should be brought by the Professional Standards Authority (PSA) who already have the power for doctors and all other healthcare professionals.
  • Consistency across regulators – the PSA should review the outcome of fitness to practise decisions and develop guidance across all of the professional regulators.
  • Diversity – the review was concerned about the over-representation of Black, Asian and Minority Ethnic (BAME) registrants in fitness to practise cases. The PSA intends to introduce equality and diversity standards and training for panel members.
  • Legal representation – the PSA were urged to consider whether the outcome of fitness to practise procedures were affected by whether registrants were legally represented.
  • Support for patients and families – the regulators were urged to review and improve support provided to patients and families involved in fitness to practise procedures.

As can be seen, the changes are not particularly radical. A re-statement of the law on gross-negligence manslaughter reflects the review’s findings that such investigations are fortunately rare, charges even rarer and convictions few and far between. The review instead shifted focus to the areas of tension between the medical profession and the GMC in terms of regulation and the use of reflective material – which had been of concern to medical professionals.

Reaction

The Health Secretary has confirmed that he accepts all of the recommendations.

"When something goes tragically wrong in healthcare, the best apology to grieving families is to guarantee that no-one will experience that same heartache again.

"I was deeply concerned about the unintended chilling effect on clinicians' ability to learn from mistakes following recent court rulings... the actions from this authoritative review will help us promise them that the NHS will support them to learn, rather than seek to blame."

Reaction is generally positive; however the GMC (the regulator) are disappointed by the elements of the review which recommend removal of their powers:

"We are disappointed by the Review’s recommendations.

"We wholeheartedly support the Secretary of State’s desire to create a learning culture. The best way to achieve that is to legally protect doctors’ reflective notes. We are concerned that, in accepting these recommendations, the Government is missing an opportunity to protect all doctors by not going ahead with a recommendation to enact this legal protection.

"We are also surprised that the Review has focussed on the GMC’s right of appeal given the case remains before the courts. If the recommendation to remove this is pursued, it will significantly reduce our ability to protect patients.

"Our appeals have been upheld in 16 out of 18 cases heard by the courts. We believe our actions have provided greater public safety and maintained public confidence in the profession through these rulings, all but one of which involved sexual misconduct or dishonesty.

"We believe that a culture of learning applies to the GMC as much as to doctors, and we will reflect on the Review’s observations."

Conversely, the British Medical Association (BMA) (the doctors’ trade union) are more positive:

"As we have seen with recent cases, when mistakes occur in the medical environment, the outcome can be tragic in leading to an unexpected death, with extreme distress both for grieving families who have lost loved ones and to doctors and other healthcare professionals who may lose their career as a result.

"If we, as doctors, and the wider health service are to learn from these mistakes and to prevent such tragedies occurring, the NHS needs a dramatic shift away from the current culture of blame. Addressing these errors needs to consider the system as a whole, rather than targeting individual doctors, who are often doing their best in the most difficult situations, in an NHS which is under pressure without adequate staff, beds and facilities.

"Doctors must feel able to report errors and reflect on their own mistakes openly, without the fear of these reflections being used against them at a later stage. Only then can true improvements to patient safety be made. While the assurance that regulators will no longer be able to request reflective material during their investigations is a welcome step, we still believe they should be given full legal protection, which would foster an open environment to apply systemic analysis to adverse events to improve patient safety.

"The BMA has long-opposed the right of the GMC to appeal fitness-to-practise decisions. We know that doctors going through this process find it stressful enough, in many cases leading to anxiety and depression, without the added worry that any decisions made by the Medical Practitioners Tribunal Service (MPTS) can be overridden by the GMC taking the case to a higher court. Therefore, we are glad that to hear the Secretary of State announce that the regulator will no longer have this right. Removing this right brings arrangements for doctors in line with that of other healthcare professionals, where this responsibility rests with the Professional Standards Authority.

"In our evidence to this review, we raised several concerns about the growing number of doctors being investigated for gross negligence manslaughter, and the inappropriate criminalisation of medical error, especially in the context of wider systemic factors. We will therefore be monitoring closely how – as recommended by Sir Norman – prosecutors review where the bar is set for pursuing criminal cases."

The PSA have not put out a press statement about the review.

Implementation

Some elements of the review will be more easily implemented than others. The review itself highlights that certain elements – i.e. the establishment of the HSIB – will require primary legislation and will be subject to the Parliamentary timetable. There has been quiet from the Health Secretary about the speed at which the working group will be established and work will commence.

Impact

In terms of gross negligence manslaughter, there appears to be little change as a result of the review which tends to suggest that the system is working well at present. However, the review is clear that lessons need to be learned from deaths and this applies as much to independent healthcare providers as it does to the NHS.

The medical examiner’s process – to run in all cases where the death is not reported to the coroner will provide a more comprehensive system of assurance and should increase transparency.


1 The review also expressed that they had heard concerns more generally about the quality of expert evidence.  Although not expressly referred to within the review, such concerns were set out, inter alia in Ruffell v Lovatt (HHJ Ian Hughes QC, County Court at Windsor, 04.04.2018) (unrep.) 

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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