Gross negligence manslaughter – why reform for healthcare professionals matters?

11 May 2018

In response to a perceived vulnerability of healthcare professionals to charges of gross negligence manslaughter (“GNM”), the General Medical Council (“GMC”) announced an independent review into the issues raised by the recent high profile prosecutions (“the GMC review”).

At first glance, the GMC Review seems to be duplication of Sir Williams’ rapid policy review, commissioned by the Secretary of State, Jeremy Hunt (“the Williams review”). However, there are variances between them and we have outlined some of the similarities and differences between the respective reviews.

Sir Norman Williams’ primary focus is ensuring healthcare professionals are adequately informed of the legal test for GNM negligence and the investigatory steps taken before initiating a prosecution. In BLM’s written submissions to the Williams review, we recommended that training on the legal principles underpinning GNM should be delivered to all medical students and healthcare professionals.

In addition, BLM suggested that coroners, the police, investigators and the Crown Prosecution Service (“CPS”) should receive training to ensure proportionality, consistency and fairness during the investigation stage.

The second limb of the Williams review is to consider the vital role of reflective learning, openness and transparency and ensure that it is protected. The GMC review similarly promotes a renewed focus on reflective practice, at both an individual and systemic level. Patient safety depends upon medical practitioners feeling confident enough to share information so that mistakes and near misses are learned from and not covered up.

The final component of the Williams review is how regulators deal with professionals following GNM proceedings. Likewise, the GMC will consider this issue but it will expand upon it by assessing the meaning of ‘public confidence’ as a regulatory objective.

BLM’s submissions to the Williams review also raised concerns about the delay between initiating an investigation and reaching a charging decision. Prolonged investigations are very distressing for clinicians, who may simultaneously be suspended from practice by the GMC or other healthcare regulator and/or their employer. It is encouraging that the GMC review will assess the extent of the emotional and pastoral support that is available to medical practitioners facing GNM allegations. Whilst there are similarities in the terms of reference, it seems that the scope of the GMC review is in fact much broader and given that the GMC will have more time – until Spring 2019 – it should provide a more in-depth, qualitative analysis of GNM issues. The Williams Report will be published imminently, just three months after it was commissioned.

Perhaps one of the most important considerations will be whether sufficient regard is given to all the circumstances that led to the incident, such as system pressures, errors or failures.

The GMC review will also examine the role of medical evidence, the quality of local investigations and the appropriateness of cases being referred to the criminal justice system; importantly, are referrals to the police only made where ‘truly exceptionally bad’ failings occur, as outlined in R v Misra [2004]?

Another key consideration for the GMC is whether coroners, the police and CPS in England and Wales, the Sheriff and the Crown Office and Procurator Fiscal in Scotland, have the right support and guidance to enable them to make just decisions.

Finally, the terms of reference for GMC review includes ensuring that accountability is appropriately apportioned between healthcare organisations and individual doctors and it will explore the reasons for a lack of corporate manslaughter prosecutions based on systemic failures. The equivalent offence of culpable homicide in Scotland will also be considered to determine whether there is any difference in the investigatory process across the UK.

The working group for the GMC review, yet to be determined, is to be led by Dame Clare Marx. It will be informed by the recommendations to be made in the Williams review but will draw its conclusions from independent research, including a consultation with stakeholders and the gathering of reliable data about investigations and conviction rates.

We are hopeful that both reviews will help to clarify what is a very complex area of the law and improve the investigatory process to deliver consistency and fairness and reduce the number of unmeritorious investigations.

Authored by BLM professional support chartered legal executive (FCILEx) Aliyah Hussain, and partners Clare Chapman and Jane Lang.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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