Rapid Review of GNM in healthcare

11 Jun 2018

Following the Secretary of State’s announcement into a rapid policy review into gross negligence manslaughter in healthcare, the panel, chaired by Sir Norman Williams, has today published its recommendations.

The review was set up to consider the wider patient safety impact resulting from concerns that simple errors by healthcare professionals could lead to prosecution for gross negligence manslaughter, even if they occur in the context of broader organisation and system failings. There was a growing mistrust amongst healthcare professionals that a defensive style of clinical practice is the only protection against criminal conviction for mistakes.

The terms of reference focused on three key areas:

  • Awareness of the processes which apply to gross negligence manslaughter cases involving healthcare professionals; 
  • Protecting reflective learning; and -
  • Lessons for healthcare professional regulators.

The panel heard from healthcare professionals, their representative bodies, regulators, lawyers, investigatory and prosecutorial authorities and members of the public. The panel also received in and heard oral evidence from bereaved families involved in gross negligence manslaughter investigations. BLM was invited to provide written submissions to the panel and we are pleased to note that some of BLM’s suggestions have been included in the recommendations made particularly in relation to training of those involved in initiating and conducting and providing expert evidence for GNM investigations.

The Panel has made a number of recommendations:

  • An agreed and clear position on the law on gross negligence manslaughter 
  • Improving assurance and consistency in the use of experts in gross negligence manslaughter cases
  • Consolidating expertise of gross negligence manslaughter in healthcare settings in support of investigations
  • Improving the quality of local investigations
  • The use of reflective material to be reviewed for regulatory proceedings and criminal investigations
  • The GMC’s right of appeal against fitness to practise decisions to be removed and the right to appeal by the Professional Standards Authority (PSA) should be retained
  • Diversity in fitness to practise proceedings should be supported
  • The PSA should review whether the outcome of fitness to practise procedures is affected by the availability of legal representation of registrants
  • Regulators should review and, where necessary improve the support they provide to patients and family members.

We are pleased to see that the proposals for review of gross negligence manslaughter include:

  • Updating guidance to investigatory and prosecutorial bodies on the legal bar for gross negligence manslaughter
  •  A working group of the CPS, coroner, medical defence organisations and others to be set up to outline the an agreed position on where the threshold for prosecution for gross negligence manslaughter lies
  •  A recommendation that consistency of experts should be improved by delivering high standards of training and encouraging more professionals to become expert witnesses
  •  A new memorandum of understanding (MoU) should be agreed between the College of Policing, the CPS, the Care Quality Commission, Healthy and Safety Executive and professional regulators to establish a common understanding of their respective roles and responsibilities
  •  The MoU should also consider the role of systemic and human factors in the provision of healthcare to support the development of a just culture
  • Consolidate expertise of gross negligence manslaughter by creating a virtual specialist unit to support senior investigating officers with experience of previous cases in the early stages of an investigation
  • The Chief Coroner should revise and update guidance on GNM.

This should lead to investigations in cases only where conduct is so “truly exceptionally bad” that criminal sanction is necessary.

Bereaved families can also expert to be involved from the outset, and throughout, the investigative and regulatory processes and to be kept informed of the progress, with errors admitted openly and honestly. Regulators should improve the support they provide to patients and family members who received care and treatment that is the subject of fitness to practise proceedings.

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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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Jane Lang

Jane Lang

Partner,
Cardiff


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