In the wake of the controversial Bawa-Garba case, the government commissioned a rapid policy review into the prosecution of doctors for gross negligence manslaughter and the related work of professional regulators.
The Chair of the review, Professor Sir Norman Williams, has now reported to Jeremy Hunt, who has made clear that he endorses certain significant recommendations, including that the GMC should no longer be empowered to appeal the decisions of Medical Practitioners Tribunals.
The recommendations were released to the public on 11 June along with press reports of selected recommendations Mr Hunt intended to take forward. Precisely how the adopted recommendations will be implemented is not yet clear. Certain recommendations would be capable of rapid implementation unilaterally by the Secretary of State, but others may require more complex procedures, including primary legislation requiring parliamentary approval.
In his letter to Mr Hunt, Professor Williams makes clear that the review panel's recommendations were unanimously agreed following a careful exercise exploring a multitude of issues. The report highlights the balance required between the public's right to transparency, explanations, accountability and assurances where there is an unexpected patient death on the one hand, and on the other hand the need to maintain a "just and learning" culture rather than a "blaming" culture amongst healthcare professionals, the latter of which leads to fearful practitioners and defensive medicine. It also raises concern over the apparent disproportionate number of Black, Asian and Minority Ethnic professionals subject to criminal and regulatory legal proceedings. Bearing all of this in mind, the review makes almost 30 individual recommendations under 10 headings.
The recommendations likely to have the most impact include:
Clarity of understanding and consistency in investigation/prosecution of gross negligence manslaughter
A working party should be formed to set out a clear explanatory statement of the law on gross negligence manslaughter (including, as a minimum, representatives of the CPS, coroners service, Treasury Counsel and healthcare defence organisations). This explanatory statement should be followed by:
- Guidance from the Director of Public Prosecutions to promote consistency in deciding whether the threshold for criminal prosecution for gross negligence manslaughter is crossed
- Revision by the Chief Coroner of guidance for coroners on whether or not referrals for criminal investigations ought to be made following an inquest
- Advice to senior investigating officers in police forces
Co-ordination of investigations and quality of expert witness evidence
- A new Memorandum of Understanding should be agreed between (and published by) various bodies including the CPS, CQC, HSE, HSIB and professional regulators, setting out respective roles and responsibilities in the investigation of deaths in a healthcare setting. This MoU ought to make clear that expert witnesses should consider the role of systemic and human factors in the provision of healthcare
- Various recommendations are made to improve the quality of expert evidence relied on in such cases. The Academy of Medical Royal Colleges (AMRC) should work with other stakeholders to promote and deliver high standards and training for those providing such evidence. The CPS and professional regulators should seek to ensure these standards are followed when commissioning expert evidence for both criminal and fitness to practise proceedings
- There should be a "thorough local investigation of all unexpected deaths in healthcare settings, both in the NHS and in the independent sectors", the effectiveness of which should be considered as part of CQC inspections. NHS organisations should conduct investigations in line with NHS Improvement's Serious Incident Framework and a similar methodology for investigation should be adopted by private healthcare providers
- Police forces should create a 'virtual' specialist unit to consolidate expertise in gross negligence manslaughter concerning healthcare professionals, to support senior officers
Reflective writing by healthcare professionals
- The review rejected suggestions that such materials should be privileged from disclosure as neither workable nor appropriate. However, those professional regulators which do have a power to require information from registrants should modify the power so as to make it explicit that it does not cover reflective material
- The AMRC, professional regulators and bodies should review and amend guidance on how reflections should be undertaken, and should be consistent across all healthcare professions
- The Professional Standards Authority (PSA) ought to retain its right to refer a decision of a professional fitness to practise panel to the High Court where the decision is considered insufficient for the protection of the public. The GMC's parallel legal power, which was gained on 31 December 2015 and is unique among healthcare regulators, ought to be removed, restoring the previous position. Until this power is removed in law, the GMC has been asked to review its appeal decision making processes to ensure transparency and group or panel-led decision making
- Whilst not strictly a recommendation, the review concluded that it did not consider that gross negligence manslaughter should constitute grounds for automatic erasure from a professional register
- To support consistency between regulators in fitness to practise proceedings, the PSA and individual professional regulators should provide guidance to support understanding and consistency of decision making on "public confidence". This should cover precisely how and to what extent public confidence in a profession is and is not undermined by the actions of a registrant
- Fitness to practise panel members should be trained in equality and diversity
- The PSA should review the effect of lack of legal representation on outcomes in fitness to practise proceedings, both in general and as part of considering the risk of BAME professionals being less likely to have access to representation. This ought to take place in the context of the broader proposals for reform of these processes in Promoting Professionalism; Reforming Regulation in which a more inquisitorial style of proceedings and greater use of consensual resolution of cases is suggested
Healthcare is perhaps the most densely regulated of sectors, with myriad public and private organisations possessing innumerable legal obligations to act in some way where an unexpected death occurs. The interactions between so many stakeholders can be incredibly complex. Many will accordingly see these as a sensible set of recommendations - particularly those that essentially encourage the stakeholders to talk to one another and publish memoranda and guidance promoting clarity and consistency.
The recommendations would generally be capable of implementation rapidly and with a minimum of formal legal impetus. Indeed certain stakeholders, for example the AMRC, have already signalled their intention to deliver on the recommendations. The benefit of this approach is also its weakness - much of the effective implementation of the recommendations is in the hands of the stakeholders, and so it may be in order for timescales to be set and compliance monitored by the DoHSC when formally confirming which recommendations it supports.
Whether the review achieves the intended aims is something that will only be capable of measurement over the longer term, as the recommendations form only the first step on a long path of reform.