On 6 February 2018, the Secretary of State for Health announced a review into the application of gross negligence manslaughter in healthcare led by Professor Sir Norman Williams.
Finch Consulting’s Kamal Chauhan (General Counsel and specialist regulatory defence lawyer) and Dr Richard Brown (Senior Consultant and seasoned regulatory health and safety expert witness) provide their comments on the conclusions of the review.
Background to the review.
Gross negligence manslaughter investigations in healthcare are unusual but prosecutions and guilty judgements are much rarer. Recent high-profile cases have led to a perception by medical professionals that they could be subject of a criminal investigation and prosecution because of simple clinical errors even though when things do go wrong it is rarely the result of one individual.
The review was set up, in the main, to consider information on and understanding of possible cases of gross negligence manslaughter involving healthcare professionals.
The review panel recently concluded its report and has made recommendations for healthcare professionals; families of the bereaved; and regulatory bodies.
- The panel recommended for healthcare professionals that:
A revision of guidance to regulatory bodies and a clearer understanding of the threshold for gross negligence manslaughter in law which should lead to criminal investigations focused on those rare cases where an individual’s performance is so “truly exceptionally bad” that it requires a criminal sanction; and
- Aystemic issues and “human factors” to be considered alongside the individual actions of healthcare professionals where errors are made that lead to a death, ensuring that the context of an incident is explored, understood and taken into account.
It was recommended that bereaved families:
- Are informed, in a timely manner, of any untoward event which might have contributed to the death of a family member or loved one;
- Are provided with the opportunity to be actively involved throughout investigative and regulatory processes; and are treated at all times with respect and receive honest explanations when things have gone wrong.
For regulatory and investigatory bodies:
- The General Medical Council should have its right to appeal fitness to practise decisions by its Medical Practitioner Tribunal Service removed. This will help address mistrust that has emerged between the GMC and the doctors that it regulates;
- The General Medical Council and General Optical Council will no longer be able to require registrants to provide reflective material when investigating fitness to practise cases. This change will help ensure healthcare professionals are not afraid to use their notes for open, honest reflection which supports improvements in patient care; and
- Concerns about the over-representation of Black, Asian and Minority Ethnic healthcare professionals in fitness to practise cases to be investigated, understood and addressed.
The review panel was not set up to recommend changes in the law but to look at how decisions are made within the current legal framework. That being said the panel nonetheless heard a number of views as to how the offence might be altered.
The comments received by the review panel were based on a view that the bar for the offence is set too ‘low’. It was suggested that the definition should be set to encompass an element of intent through the inclusion of words such as ‘wilfulness’ or ‘recklessness’, while other suggestions favoured the adoption of the Scottish offence of culpable homicide.
There was, however, a strong, although not universal, consensus that healthcare professionals must not be, or be seen to be, above the law, and that the offence of gross negligence manslaughter should continue to apply to healthcare professionals in the same way that it applies to everyone else.