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