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Health secretary orders review into use of medical manslaughter

BMJ 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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Letter to Dr Sarah Wollaston MP from Nick Ross

15 February 2018

Dr Sarah Wollaston MP
Chair
Health Committee
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.

Nick Ross

Competing interests: No competing interests

16 February 2018
Nick Ross
broadcaster and journalist
PO Box 999, London W2 4XT, UK