DOH publishes review into gross negligence manslaughter

The government has today published it’s rapid review into the offence of gross negligence manslaughter and it’s applicability to healthcare professionals.

The review was prompted by the outcry into the decision by the GMC to appeal an employment tribunal decision  relating to a senior paediatric registrar, Dr Bawa-Garba resulting in her striking-off  and upon which we have previously commented here.

The review was tasked with assessing how the public could be protected from criminally negligent medical treatment, but also ensure that healthcare workers were not unfairly or inappropriately investigated.

It was accepted that where a healthcare professional met the high threshold set for gross negligent manslaughter then they should be investigated and prosecuted. However, there was no benefit in bringing cases which did not meet that criteria and the panel set out several recommendations to improve this process:

1. Better understanding of the law on GNM – the law was considered to be adequate but unwieldy. Patients and doctors were uncertain and new guidance is to be prepared setting out the tests of when treatment resulting in death could be considered to be truly exceptional bad enough to merit prosecution
2. Improvement in the standard and consistency of expert evidence. Any expert appearing for the prosecution should have relevant clinical experience and ideally be in current clinical practice. There should also be better training and a greater interest in appearing as an expert.
3. Pooling of expertise within the coronial and police service in order to avoid inappropriate referrals to the CPS and to create a virtual specialist unit. There will also be an updating of guidance by the Chief Coroner of when a verdict of GNM is appropriate. This will also include a memorandum of understanding which will ensure that any expert witness takes into account the role of systemic and human factors in the provision of healthcare.
4. The CQC is to be informed of any referral to the CPS so that it can take a lead and consider whether to carry out a parallel but separate investigation to consider the role of systemic / human factors.
5. Personnel should not be able to be compelled to disclose reflective material for any fitness to practice hearing. It was recognised that whilst this material was an important factor in professional development, it was not appropriate to use it against doctors who felt that self-incriminating entries could be used against them.
6. The GMC should no longer be able to appeal against a fitness to practice decision made by the Medical Practitioners Tribunal Service. The right of the Professional Standards Authority to appeal is preserved.
7. The PSA should review the outcomes of fitness to practise cases relating to similar incidents and circumstances considered by different regulators. This review should seek to determine the extent and reasons for different fitness to practise outcomes in similar cases and, if appropriate, recommend changes to ensure greater consistency.
8. There should be greater diversity within the Professional regulators and that further work was needed to determine whether Black , Asian and Minority Ethnic registrants were over-represented in fitness to practice proceedings and were also given equal access to legal representation.
9. A conviction for GNM should not constitute grounds for automatic erasure from the general medical register.

The publication by Professor Williams represents a comprehensive review of the law of GNM and it’s application to medical professionals. Whilst many recommendation have been made to  help increase awareness and understanding of the offence the review stopped short of suggesting a wholesale change to the law which it felt was necessary to maintain  patient protection.

The review stresses that the number of convictions for GNM in England are low and that there is a great deal of misinformation.  Between 2013 and 2014 there have average only  28 cases referred to the CPS per year with only 4 convictions during the entire period.  It acknowledged however that that there were, concerns in relation to arbitrary and inconsistent referrals by coroners and the police and the changes needed to be introduced in order to separate any fitness to practice proceedings from a criminal investigation.

Overall, we consider the recommendations to be a fair balance between ensuring patient safety but enabling medical professionals to carry on with their work with a clearer understanding of what actions are likely to fall foul of criminal sanctions.