Health secretary orders review into use of medical manslaughterBMJ 2018; 360 doi: https://doi.org/10.1136/bmj.k592 (Published 06 February 2018) Cite this as: BMJ 2018;360:k592
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Narrow terms of reference mean that Jeremy Hunt’s review of gross negligence manslaughter will miss the point
In February the secretary of state for health announced a review into the issues relating to gross negligence manslaughter in healthcare. This followed his own apparent dismay at the implications of the decision by the High Court that Hadiza Bawa-Garba, a trainee paediatrician who had been found guilty of this charge in 2015, should be struck off the medical register.
Bawa-Garba’s case has gained totemic importance for much of the medical profession, as demonstrated by thousands of social media posts and petition signatures, scores of letters to the national press, and hundreds of thousands of pounds donated to a crowdfunding appeal for her benefit.
The attention may have come too late for Bawa-Garba herself, who has already had one request for appeal against her criminal conviction turned down.
But many had still hoped that Hunt’s review, led by former Royal College of Surgeons president Professor Sir Norman Williams, would address what seems to be a fundamental inconsistency between the criminal justice system and all that we in healthcare have learned from other safety critical industries in recent years.
From construction to aviation, safety conscious industries trying to reduce the number of accidents and errors have at least tried to move away from a culture of blame, in which sanctioning individuals was wrongly seen as a useful deterrent, and towards a “just culture” in which individuals should be held accountable for their actions if they knowingly violate safety procedures or policies.
Many law and ethics scholars have argued that the law of gross negligence manslaughter, or at least the way in which it is used, are in need of an update to reflect this better understanding of the importance of fostering an open safety culture. However, it is now apparent from the recently published terms of reference(1) that the Williams review will examine neither the law of gross negligence manslaughter, nor its use by the crown prosecution service and the courts.
Instead it will restrict itself to considering how government can make sure healthcare professionals know about the law, how (if at all) openness and transparency can be preserved in the current climate, and how professional regulators should act following a conviction.
It is not clear why these narrow terms have been adopted. It is likely that the department of justice had a say in closing down what appeared to be Hunt’s much broader ambitions.
It will be a great shame to miss the opportunity of reviewing the law around gross negligence manslaughter. Anyone with an interest in promoting patient safety should press government to broaden the terms of the review to encompass the real issues.
1. Terms of reference available at [https://www.gov.uk/government/groups/professor-sir-norman-williams-review]
Competing interests: No competing interests
15 February 2018
Dr Sarah Wollaston MP
House of Commons
London SW1A 0AA
I have been following your correspondence with Charlie Massey over GMC v Bawa-Garba and I would be grateful if you and the Health Select Committee would consider the wider implications of the case, and the need for specific legislation to provide better risk protection for the public from medical error.
I too have been corresponding with the GMC on this matter, have discussed it at length with Charlie and am currently debating with the GMC’s chair, Professor Terence Stephenson, where we should go from here. Although we have not been able to agree on everything, we do agree the present position is most unsatisfactory.
In your letter to Charlie (5 February) you said it would not be appropriate for you or for the Committee to challenge the decision of the High Court. I accept your position. The separation of power between parliament and the judiciary is a bedrock of liberty. On the other hand, courts can only interpret the law as it stands. Your Committee is best-placed to ensure that the review proposed by Jeremy Hunt is rapid an effective.
I should confess I am a lay observer in this, but as a prospective patient, as a bioethicist (the longest-serving member of the RCP’s ethics committee), as a champion of medical candour (a member of the National Speak-Up Guardian’s advisory group), and as someone who bears responsibility for patient safety (a non-exec of one of the largest acute hospital trusts) it is clear to me that the criminal law on medical negligence should be reconsidered – or perhaps I should say considered, since I do not believe the tangled legal, moral and safety issues of medical errors have ever been specifically thought through.
Of course it would be wrong to suggest that clinicians should be above the law. But the law should not be above reason and reconsideration, and where it has unintended consequences it should be reformed.
My personal view – as someone who has spent three decades working to tackle crime – is that criminal sanctions are always inappropriate where someone makes a genuine mistake. We have enough people intending to do wrong without diluting the concept of a crime or squandering the heavily rationed resources available for investigation and prosecution. No behaviour should be prosecuted as criminal when the actor is honesty seeking to abide by the law.
As I say, that is a personal view, and I believe parliament and the courts have erred in principle in stretching the concept of crime. But medicine is a special case. Doctors, and other clinicians, routinely face life-and-death decisions. They manage complex uncertainties, co-morbidities, injuries and illnesses whose symptoms are sometimes vague or which can mimic other conditions or hide behind other problems. They are bound to encounter diagnostic and treatment challenges which stretch their knowledge or their skills and sometimes the results are calamitous. The risks work both ways: failure to intervene appropriately, early enough or effectively enough can be catastrophic, as in Bawa-Garba’s case; on the other hand, since scientific medicine is powerful, interventions themselves are often injurious. According to the NHS, around 850,000 patients in England are harmed or nearly harmed by their hospital care each year. Many more will be damaged in primary care, in home births or through other well-intentioned but misguided treatments. A culture of blame is inimical to openness, honest self-reflection, learning and rehabilitation, and if ever there were circumstances where we need to be wary of a blame culture, surely this is it.
Indeed, I would say that society’s failure to review the use of gross criminal negligence in medicine is itself a case of gross negligence.
That would be so even in an environment in which doctors and nurses had ample time to make decisions, and in circumstances where they had appropriate backup and resources. As you well know, that is rarely the reality within the NHS.
You and colleagues may be reticent about insulating clinicians because, rather like the GMC in the Bawa-Garba case, you might fear a public backlash. Of course it is inevitable that some people are instinctively punitive and see justice as a pound of flesh. But, as I wrote yesterday to Terence Stephenson, I believe in the good sense of citizens when we are properly presented with both sides of a story. We lay people need to be involved and should be asked our views about the trade-offs between blame and candour, the harms as well as benefits of defensive medicine, and what we expect of front-line staff in a healthcare system which is overworked and under-resourced.
In that same letter I proposed that clinicians should be exempt from criminal charges for honest errors. In my opinion that, at very least, should be the case for doctors in training. If Sir Norman Williams concludes that exemption is too much for lawmakers to swallow then perhaps hospitals or trusts should shoulder criminal responsibility when things go wrong, but even then only where management and supervision has been recklessly inadequate.
In any case we need a thorough reassessment.
Until we have the results of that review, we imperil the frankness, not to say the morale, of front-line clinicians and thus the safety of you and me or anyone else who goes to clinic or hospital seeking help.
With thanks and good wishes.
Competing interests: No competing interests
Has the Government played its part?
It is a belated but welcome decision by the Health Secretary to set up a review so that health ‘professionals know where they stand with respect to clinical liability or professional misconduct’. This should leave the British public confused as to how these decisions had been made in the past in the face of the discrepancy between the interpretation of the regulation by the highest legal and professional authorities in the country. Almost for the first time it is being recognised that the situation is far more complex as a consequence of ‘systems failures’ which could have devastating outcomes for those involved. Is there any hope for those who have been let down in the past before this enlightenment.
The problem as indicated by Rob Hendry director of the Medical Protection Society is multifactorial which influences the judgment made of an individual at any one time. Of the many factors and circumstances that may influence an individual’s behaviour, need Sir Norman Williams be reminded of the Health Secretary’s failure to recognise the profound influence of non compliance with the statutory obligations of the ‘Duty of Quality’ imposed by the Health Act 1999 and expressed in the hallowed declaration of Clinical Governance:
“A framework through which NHS organisations are accountable for continually improving the quality of their services and safeguarding high standards of care by creating an environment in which excellence in clinical care will flourish.”
Would it not be incumbent on Sir Norman to inquire into or comment on how far the Health Secretary has fulfilled his statutory obligations in the circumstances involving the plight of Hadiza Bawa-Garba? Or is it to be treated as a defunct law. Believe me they do exist. ‘It could be regarded an act of treason to place a postage stamp bearing the British king or queen’s image upside-down’ or ‘It is illegal to die in the Houses of Parliament’. However ludicrous or hilarious they might sound they have not been expunged. Some laws, however, seem to be defunct even as the law is included in the corpus juris. They never seem to be tested. Their very existence denied as Mr Andrew Lansley, then Health Secretary, did when he claimed that “The NHS currently has no legal obligation to improve continuously the quality of care”. This despite the similarity of the wording
It would be no surprise that the government would narrow the remit of Sir Norman’s review to avoid the exposure of its failure to comply with statutory obligations.
I hope that there would be a challenge to the Health Secretary to give us the assurance that he and his predecessors comply with the requirements of Duty of Quality as required in Health Act 1999.
It is on record that Peter Wilmshurst and many others have questioned their own Fitness to Practice having been revalidated and declared Fit to Practise. Believe the GMC or the admission by the doctors themselves? This unquestionably raises the validity of their revalidation. Revalidation is defined in the Medical Act 1983 as an ‘evaluation of the medical practitioners’ fitness to practise’. It is clear that the practitioners themselves have no confidence in the declaration of their Fitness to Practise and rightly so since their fitness to practise can never be established as required in law. (Please see more on revalidation in the rapid response to; There but for the grace of God: Fiona Godlee in the last issue of the BMJ: 3 Feb 2018.)
I sincerely hope that the legal minds addressing this issue would demand evidence of compliance with the Medical Act 1983 and Medical Act 1999. The British public cannot be fooled forever.
Competing interests: No competing interests