The recently published ‘Independent review of gross negligence manslaughter and culpable homicide’ (the Review) chaired by Dr Leslie Hamilton, was commissioned by the General Medical Council (GMC) to understand and help rebuild the relationship with the doctors they regulate.
The Review has its origins in the case of Dr Hadiza Bawa-Garba, the senior trainee paediatrician who was convicted of gross negligence manslaughter following the death of a patient from sepsis at Leicester Royal Infirmary. The GMC came under severe criticism from within the medical profession for appealing the decision of the Medical Practitioners Tribunal Service (MPTS) to merely suspend, rather than remove Dr Bawa-Garba from the medical register. Dr Bawa-Garba took her case to the Court of Appeal which restored the initial decision of the MPTS that she should be suspended. That suspension ended in July 2019 and she is now able to return to practice, albeit under conditions, taking into account Dr Bawa-Garba’s time away from work whilst suspended.
The case raised a number of concerns about the processes relating to:
The recommendations of the Review seek to build upon previous research and to balance personal and system accountability with learning and prevention of harm. With twenty nine in total, it is not possible to consider each of the recommendations within this article, but those referred to below highlight some of the key issues.
Local hospital investigations are often criticised for not meeting the needs of patients and their families. Arguably, in our experience, this can indirectly lead to an increase in clinical negligence claims, as failure to engage effectively and not providing the information that patients and families are seeking, can mean they are more likely to seek answers through the legal process. The Review recognised that this is particularly acute in the immediate aftermath of an unexpected death.
Recommendation 3: Following an unexpected death, there should be close adherence to the professional and statutory duty of candour to be open and honest with the family of the deceased. They need to be told as fully as possible what has happened, why it happened and be assured that they will be kept involved and informed throughout the investigation.
The Review highlighted frequent instances of clinicians not being supported or invited to engage in investigations, and the problems associated with an apparent focus on attributing blame rather than what can be learnt from an incident. The Review highlighted the work of the Healthcare Safety Investigation Branch (HSIB) which is both undertaking investigations (particularly into maternity care), and helping develop the capabilities of local healthcare organisations to improve the quality of their investigations.
“Recommendation 15: Improvements in patient safety are most likely to come through local investigations into patient safety incidents which are focused on learning not blame. We strongly endorse recent developments in the frameworks for investigations. These emphasise the need for the investigation team to have the time and the appropriate experience, skills and competence (including understanding of human factors) to undertake investigations, and the necessary degree of externality to command confidence in the process. We also stress the need to involve and support families and staff.”
The Review expressly does not examine the state of the law on gross negligence manslaughter. It defers to the recent review into gross negligence manslaughter (GNM) in healthcare chaired by Professor Sir Norman Williams (report published on 11 June 2018) (the Williams Review). The Review does however raise concerns with an individual coroner’s power to notify the police should they consider a criminal offence to have been committed and whether there is sufficient guidance available.
"Recommendation 17: In order to ensure a consistent approach, if a coroner feels that a doctor’s conduct might reach the threshold for GNM, they should discuss this with the Chief Coroner’s Office before the police are notified."
The Review notes that support of clinicians involved in coronial proceedings is varied. It applauds the decision by the Royal Brompton and Harefield Hospital NHS Foundation Trust to employ a doctor full time to deal with medico-legal issues and attend all inquests.
Recommendation 18: Healthcare service providers should provide support and guidance for doctors who are involved in an inquest or fatal accident inquiry so that they have an appropriate understanding of the process and their role in proceedings.
Significantly, “doctors’ loss of confidence in the GMC” is referred to as being “at the heart of this review” and the recommendation is that the GMC “examine the processes” which have contributed to this. The Review also endorsed the recommendation of the Williams Review that the GMC should lose its right to appeal a decision of the MPTS – a power that is already held by the Professional Standards Authority (Recommendation 21).
The Review further highlighted the need to update the policies and guidance within the GMC to take account of its role in regulating the medical profession within a system under pressure whilst maintaining public confidence in the medical profession.
The GMC has acknowledged that it has a crucial role in building a just culture in healthcare but emphasises that the actions of a single regulator are not enough. It encourages other organisations to carefully consider the recommendations of the Review to ensure greater consistency in the response to an unexpected death. Ultimately there must be improvement to ensure doctors are training and working in safe environments for the benefit of patients.
The Review naturally focussed on cases involving unexpected deaths but the recommendations are part of a growing call within the medical profession / NHS for a culture prioritising learning over blame. This is further demonstrated with the recent publication by NHS Resolution of ‘Being fair: supporting a just and learning culture for staff and patients following incidents in the NHS’.
Related item: The case of Dr Bawa-Garba – could it happen in Ireland
