The report of the ‘Williams Review’,[1] which was tasked with scrutinising the offence of gross negligence manslaughter (GNM) in healthcare after the controversial decision of the High Court in the Bawa-Garba[2] case, has been published today.

The review panel has recommended a range of changes to the manner in which suspected incidents of GNM in the context of healthcare are investigated and then possibly pursued by prosecuting authorities and professional regulators.

Though the panel’s report is only advisory, it is likely to result in several key changes to the current regime surrounding GNM in healthcare. Its recommendations have already received endorsement from the Health Secretary, Jeremy Hunt.

Recommendations include the removal of the GMC’s power of appeal, enhanced training for experts, the protection of professional’s reflections and the thorough investigation of all unexpected deaths.

The panel’s core recommendations are:

  • Clarification of the offence of GNM

That a working group be created consisting of representatives from the CPS, medical defence organisations, the coroner services, and Treasury Council with the express aim of formulating guidance that will clarify where the threshold for prosecution lies in GNM cases.

  • Abolition of the GMC’s right to appeal decisions of the Medical Practitioner’s Tribunal Service (MPTS)

The panel was unequivocal in stating that the power of ‘the General Medical Council (GMC) to appeal decisions of the MPTS to the High Court should be removed’. This is of course critically important given that the GMC’s ability to appeal a decision of the MPTS under s.40A of the Medical Act 1983 was what allowed the GMC to appeal the Bawa-Garba case to the High Court in the first instance. The GMC has expressed surprise at this recommendation.

It is noteworthy however that the panel did not recommend that the similar power of the Professional Standards Authority to appeal fitness to practise decisions be altered.

  • Collaborative approach

The panel has suggested that the CQC be given the remit to carry out separate investigations of healthcare providers in instances of GNM, in parallel to any CPS investigation. This change has been proffered with the objective of determining at an earlier stage what the contributory effects of ‘systemic and human factors’ were in causing the incident and to ‘identify any changes which might need to be made’.

A need for co-operation and inter-agency communication was also emphasised by the panel in a proposal that a Memorandum of Understanding be agreed between appropriate organisations such as the Health and Safety Executive and the CQC.

  • Reflective material

One of the focal points in the reaction of the medical profession to the Bawa-Garba case was the role which was played by Dr Bawa-Garba’s reflections. Assurances were given by the CPS and GMC respectively in the aftermath of the High Court’s decision that reflective material would ‘be highly unlikely’ to form part of any fitness to practise investigation and had not been used in the Bawa-Garba case.

There was nonetheless an outcry from medical professionals who were concerned by the notion that their candid reflections could potentially be used against them. Mindful of this, the Panel have advised that regulators amend their existing guidance on how healthcare professionals carry out reflections to eliminate any ambiguity in the role of reflections. They have also recommended that regulators are be precluded from using their statutory powers to obtain a professionals reflections in the context of an investigation into that practitioners fitness to practise. The GMC have expressed disappointment that the Panel did not endorse its recommendation that reflections should be privileged.

Comment

The decision of the High Court in Bawa-Garba resulted in the GMC being castigated by a substantial portion of the medical profession as a whole. From the furore that followed the judgment it is evident that healthcare professionals considered the decision to erase Dr Bawa-Garba as symptomatic of a system that unduly seeks to blame rather than to foster transparency and learning from inevitable mistakes.

It was illustrative of the way the GMC examined its appeal that its Chair, in conversation with the Royal College of Paediatrics, compared the process to an automatic external defibrillator which prompts the user with a suggestion of when to shock. The Chair stated that when prompted by the defibrillator:

‘you have a choice; you don’t have to do what it says, but on the whole all of us who are trained… are probably going to take the advice the machine is giving unless we’ve got a very good reason not. Similarly, if you take advice from someone who’s an expert in the law… and they think the tribunal erred in law, of course it’s up to you whether you follow that advice’.[3]

The intimation of the Chair’s remarks is clear, that when a lawyer advises you to appeal you appeal, irrespective of wider public policy consideration. That promises little scope for the exercise of independent judgement and looked more like the delegation of the power to the lawyers. It is interesting to contrast that approach with that of the PSA which carefully considers whether to exercise its power and publish its reasons in a transparent manner.

Advocating the revocation of the GMC’s power to appeal fitness to practise decisions made by the MPTS, which was only introduced in 2015, is a telling suggestion by the panel and is demonstrative of both the unpopularity of that statutory power and of the GMC having lost the faith of the medical community at large.

In instigating the ‘Williams Review’ Jeremy Hunt stated that: ‘the actions from this authoritative review will help us promise [clinicians] that the NHS will support them to learn, rather than seek to blame’. The recommendations encapsulated in the report of the ‘Williams Review’ if implemented in their entirety will undoubtedly bring about meaningful reform to the current, and widely accepted to be dysfunctional, GNM framework.

However, whether the review is indicative of a lasting focus on encouraging openness about mistakes in healthcare as opposed to a set of reactionary, albeit positive measures, remains to be seen.