Gross Negligence Manslaughter in Healthcare – killing our opportunity to learn lessons?

Prosecutions and convictions of healthcare professionals for gross negligence manslaughter (GNM) are rare. In 2015, a trainee paediatrician Dr Bawa-Garba was found guilty of GNM as a result of the death of 6 year old Jack Adcock who developed sepsis in 2011. Despite the conviction it was ruled that Dr Bawa-Garba should remain on the medical register. However, the General Medical Council took the case to the High Court and in January 2018 she was struck off the register.

Whilst Dr Bawa-Garba has now been granted the right to appeal the decision, this case sent shockwaves through the medical profession. Healthcare professionals were very concerned that honest errors could result in prosecution for GNM, even in the face of broader organisation and system failings. There was a particular concern that this fear had a negative impact on reflection and learning by healthcare professionals which is essential in improving patient care. In February 2018, the Health Secretary Jeremy Hunt commissioned Professor Sir Norman Williams to conduct a rapid policy review. 

The Purpose of the Rapid Review

The purpose of the review was to consider:-

1. how to ensure healthcare professionals are adequately informed about:

• where and how the line is drawn between GNM and negligence;
• what processes are gone through before initiating a prosecution for GNM, and to provide any further relevant information gained from engagement with stakeholders through this review about the processes used in cases of GNM;

2. how to ensure the vital role of reflective learning, openness and transparency is protected where the healthcare professional believes that a mistake has been made to ensure that lessons are learned and mistakes are not covered up; and

3. lessons that need to be learned by the General Medical Council (GMC) and other healthcare professionals’ regulators in relation to how they deal with professionals following a criminal process for GNM.

Key recommendations

In his report, Professor Sir Norman Williams made a series of recommendations to support a more just and learning culture in the healthcare system. Key recommendations include:-

1. Developing an agreed and clear understanding of the law on GNM.
2. Improving assurance and consistency in the use of experts in GNM cases.
3. Existing guidance should be reviewed to ensure reflective practice supports continued professional development and to provide reassurance to healthcare professionals about the confidentiality of reflective practice. It suggests it is far more likely to be used in support of an individual rather than against them. This is universally welcomed by healthcare professionals' regulators.
4. Clarity that regulators would not request reflective material in the investigation of fitness to practise cases. There was no suggestion that either the GMC or GOC had used this power to request reflective material when investigating fitness to practise concerns.
5. The Professional Standards Authority (PSA) should retain its right to appeal a decision of a fitness to practise panel to the High Court on the grounds of insufficient public protection.
6. The duplicate power provided to the GMC to appeal decisions of the Medical Practitioners Tribunal Service (MPTS) to the High Court should be removed. This aims to ensure a consistent approach to appeals across healthcare professions that are statutorily regulated.
7. The GMC should review its processes for deciding when to refer a decision of the MPTS so that it is transparent and understood by all parties and involves a group or panel decision.
8. There is confusion over what actions cause a loss of public confidence in the profession. Clear examples are needed to offer guidance, which in turn will help provide consistency.
9. Seeking to determine the extent and reasons for different fitness to practise outcomes in similar cases.
10. Professional regulators should ensure that fitness to practise panel members have received appropriate equality and diversity training.

What next?

The heart of the review is to promote a just and learning culture to improve patient safety. Changes will be seen in revised guidance to promote consistency throughout the profession. A clearer understanding of gross negligent manslaughter will be welcomed, with only rare cases leading to criminal investigation in exceptionally bad circumstances. In addition, systemic issues and human error will be assessed alongside individual actions to promote a fair and more proportionate approach to more thorough investigations.

An open culture of learning is key to improving patient safety. Healthcare professionals need to be confident that they will be supported when they air their concerns, rather than being blamed and the review stresses a need for a balance to be struck. It is hoped that the recommendations will help reduce the climate of fear prompted by the Bawa-Garba case and it now remains to be seen whether and how quickly the recommendations are implemented. We also await the outcome of Dr Bawa-Garba's appeal against her erasure from the register.

For more information regarding the Review, or what this means for your organisation, please contact Debbie Rookes, Senior Associate, or Claire Bentley, Associate