A CHPI editorial accompanies this piece: The need for professionalism, learning and accountability when things go wrong in healthcare
The outpouring of support for Dr Hadiza Bawa-Garba, who was found guilty by a jury of gross negligence manslaughter (GNM) for the death of Jack Adcock and erased from the medical register, has been extraordinary.((Back to blame: the Bawa-Garba case and the patient safety agenda – The BMJ; 29 November 2017))
Initially, the Medical Practitioners Tribunal Service (MPTS), which exists to independently determine whether a doctor is fit to practice, had rejected the argument that she should be struck off the medical register. However, the GMC appealed against this decision to the High Court and was successful.((GMC successful in High Court bid to strike off junior doctor – PULSE; 25 January 2018))
The GMC’s action has been met with unified opposition from the medical profession and the GMC’s authority as a regulator has subsequently been brought into question.((The General Medical Council has lost its way – The Lancet; 14 April 2018)) The Bawa-Garba case has shined a very clear light on how ‘blaming and naming’ individuals never advances patient safety.
In this instance, why was it that just two individuals (Dr Bawa-Garba and Nurse Isabel Amaro) were convicted, even though an investigation had found that they were working in a system that was so compromised that over 70 actions had to be taken by Leicester Royal Infirmary in order to improve how sick children are managed.((‘No single root cause’ found after Bawa-Garba SUI investigation – PULSE; 19 March 2018)) Despite this, the Crown Prosecution Service (CPS) decided that there was insufficient evidence of hospital culpability for Leicester police to pursue criminal charges.((Police decide not to pursue charges against hospital over Bawa-Garba case – PULSE; 20 July 2018)) Indeed, to date no UK hospital has ever been convicted of corporate manslaughter.
To err is human, though it seems legally it is much easier to convict an individual doctor or nurse than the hospital in which that doctor or nurse works. How many of us would survive the microscopic scrutiny of our actions on one of our less successful days when things could or should have gone better? Doctors work with the daily risk of tragedy which can happen despite doing one’s best. The most important outcome of these tragic events must be to minimise the risk of them recurring. This can be achieved by creating a ‘just culture’ where the reporting of and learning from error is seen as a priority.
A ‘just culture’ should require that both patients and staff are treated fairly. This will save thousands of lives in future and avoid regression to individual blame in cases of honest errors involved in often complex healthcare-related deaths.
Gross Negligence Manslaughter (GNM)
GNM is part of English common law. The legal test was originally set out by Lord Mackay LC in 1994 (1) who stated that “…gross negligence…depends…on the seriousness of the breach of the duty committed by the defendant in all the circumstances in which he was placed when it occurred and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury’s judgment to a criminal act or omission”((R v Adomako  3 WLR 288 House of Lords)).
Over the last 20 years there have been an average of 1 to 2 GNM trials per year involving doctors, with a conviction rate of around 30%.((Gross negligence manslaughter and the healthcare professional – J Vaughan, RCS Bulletin; February 2016)) In the last five years, 15 defendants have been charged / put on trial for GNM.7 Some of these trials collapsed as the defence teams were able to successfully persuade the judge to direct the jury to find a ‘not guilty’ verdict, or the prosecution withdrew its case for lack of evidence.((Doctor cleared over death of 12-year-old boy – The Telegraph; 17 May 2016))((Judge demands review into Ealing abortion clinic death case – BBC News; 30 June 2016)) The overall crime conviction rate for the CPS is of the order of 80%, yet in ‘medical manslaughter’ it is around 25-30%, suggesting that too many cases of medical failing are inappropriately being treated as crimes.((Gross negligence manslaughter and the healthcare professional – J Vaughan, RCS Bulletin; February 2016))
A central problem is that treating instances of medical failing as cases of manslaughter focuses blame on one or a few individuals, and neglects failures in the system in which the individuals worked. Careful investigation of fatal errors often reveal systemic problems and show how they can be prevented. Thus, it is better if criminal prosecution is only reserved in cases where those doctors or other clinicians have been found to have shown “such disregard for life and safety as to amount to a crime against the state”.6
The effect of successful appeals
Two recent GNM trials, of David Sellu (a senior consultant colorectal surgeon)((David Sellu trial: Jail for doctor in manslaughter case – BBC News; 5 November 2013)) and Honey Rose (an optometrist)((Optometrist Honey Rose guilty over Vincent Barker death – BBC News; 15 July 2016)), have led to initial convictions being quashed on appeal. David Sellu actually served a custodial sentence before his conviction was quashed, and no allegations were upheld against him at a subsequent MPTS hearing this year.((Sellu is cleared of medical misconduct – The BMJ; 07 March 2018))
These successful appeals against conviction have now clarified the legal test for ‘gross negligence’ and made it harder to convict in this area. Lord Leveson’s decision in David Sellu’s appeal ensures that judges must direct juries very tightly: the standard has to be that the defendant acted in a “truly, exceptionally bad” manner. In Honey Rose’s appeal, it was clarified that there must be foreseeability of death for negligence to be of criminal degree.
The bar is now set higher for a conviction, and since these appeals, no further healthcare practitioners have been charged with manslaughter. Although several investigations are still ongoing, since the successful Sellu appeal, the number of investigations has fallen significantly.
In Scotland, the law of culpable homicide (CH) is applied to cases of medical negligence. However, no healthcare professional has been found guilty of the offence of CH in Scotland where there is far less of an appetite for prosecuting healthcare professionals (HCPs). The recent legal refinements of GNM through successful appeals means that it is now more difficult to successfully convict healthcare professionals.
However, there may be other aspects of the Scottish legal process in healthcare which could be explored to see if there are learning points for the English system. In particular, a salient point from Scotland is that the prosecution of a healthcare professional for culpable homicide must be deemed as serving public interest; and must first be considered by the procurator fiscal and authorised by the Lord Advocate before it can proceed. In arriving at a decision they have to balance the interests of justice with supporting a patient safety culture.((Gross negligence manslaughter does not exist in Scotland—is it time to move English law towards the Scottish position? – R Hendry, BMJ Blogs; 13 March 2018))
The Williams Review
In February 2018 Jeremy Hunt, then Secretary of State for Health, asked Sir Norman Williams to make recommendations on how to prevent GNM from having negative effects on the creation of a “just learning culture”. His review made two central recommendations((Williams review into gross negligence manslaughter in healthcare – DoHSC; 11 June 2018)):
Though the legal bar for conviction for gross negligence manslaughter is high, investigations that have little prospect of conviction cause uncertainty and distress. Revised guidance to investigatory and prosecutorial bodies and a clearer understanding of the bar for gross negligence manslaughter in law 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;
Systemic issues and human factors will 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.
Williams argued that there should be updated guidance for coroners in relation to GNM and that objective, early witness opinion should be obtained from experts currently working in relevant, clinical practice and within a framework of good practice for doctors providing medico-legal opinions. The Academy of Royal Medical Colleges (AORMC) has been tasked with defining the standards expected of expert witnesses and setting out principles of good practice. The creation of a “virtual specialist unit” of expertise for the police, also recommended by Williams, should further help ensure that only the most fully justified cases are prosecuted.
Williams also recommended that the GMC should no longer have the right to appeal to the high court against decisions made by the MPTS about the fitness of a clinician to practise. This recommendation has been widely welcomed by doctors, who feel that the GMC’s power to appeal against decision of the MPTS subjects doctors to being in effect prosecuted twice by the GMC.
However, the Professional Standards Authority (PSA), which oversees all the professional regulators, including the GMC, will retain its separate right to appeal if it thinks that an MPTS decision on a doctor’s fitness to practice is wrong. This, together with the new network of medical examiners that is being established to look at all patient deaths in NHS hospitals that aren’t referred to a coroner, should be reassuring to bereaved families.
The Williams review also suggested that a working party be established between the Crown Prosecution Service (CPS), the Chief Coroner and medical defence societies to agree on what is “truly, exceptionally bad”. The clear statement which should come from this recommendation, is likely to set the bar for conviction even higher.
Another relevant initiative is the draft Health Service Safety Investigations Bill (HSIB) which is currently being examined by a joint committee of the two houses of parliament.((Call for evidence: Draft Health Service Safety Investigations Bill)) The key innovation proposed in the bill is the establishment of ‘safe spaces’ in which all those concerned in an adverse event for a patient can say what they did, and what they think, without fear of blame. This is so that everything that may have contributed to an adverse event is understood and used to prevent similar events in future.
In other words, with this innovation, the system, not an individual doctor or nurse, will be accountable. This does not mean that individuals cannot be found to be negligent – they will still be accountable to the GMC, and ultimately to the courts, but that they would not be blamed for failures of the system they work in.((A scalpel in the back: How hospital buried evidence that could clear surgeon jailed over patient’s death after 40-year ‘exemplary’ career – Mail on Sunday; 26 July 2015))
Another related concern that has been raised is that the initiation of referrals to the GMC for alleged medical malpractice may be discriminatory. The GMC has recently commissioned Roger Kline to undertake a review in view of the disproportionate representation of some groups of doctors in GMC referrals.((GMC commissions new research into fitness to practise referrals – General Medical Council; 21 April 2018)) Charles Massey, the GMC registrar, acknowledged that “there is an overrepresentation of BME doctors that have been complained about and we want to know more about what is driving this, as well as whether there is an under representation of other doctors”.
Other factors are also being considered to see why some doctors are more likely to be unfairly accused of wrong-doing. For example, could it be because some doctors are more ‘marginalised’ or ‘lacking power’ within the current hierarchy of medicine?
Over the last 5 years, 151 GNM investigations have taken place.14 It is not known if there is any racial disproportionality across all these cases. However, in the last 10 years it has been exclusively BME practitioners who have been convicted of medical GNM. Although the overall number of convictions is small, this trend should be examined for evidence of any bias or discrimination.
Call for enhanced protection of reflective notes
Doctors who are training to become consultants are required to keep notes, known as ‘reflections’, in which they record their own performance in honest and frank terms. Disappointingly, legal protection has not been given to these notes. In the hands of a prosecutor, these notes may be (and have been) used to help convict a doctor of negligence.
Williams, in his review, cites the difficulty of making such reflective notes privileged solely in healthcare. Although the CPS states that reflections are “unlikely” to be used, a defence lawyer would be likely to advise their client that “unlikely” means “entirely possible.” The GMC cannot request reflective material for its hearings, but in a criminal court all evidence is potentially disclosable.
For now, doctors have been advised to write their reflections in a way which minimises the likelihood of their being used by prosecuting authorities, which obviously risks reducing their value in professional practice.((Interim guidance on reflective practice – Academy of Medical Royal Colleges; March 2018))((70% of GPs say writing reflective notes is unsafe following Bawa-Garba case – GP Online; 30 July 2018))
It is notable however that the Australian and New Zealand College of Anaesthetists (ANZCA) seem to have obtained enhanced legislative protection for reflective notes and reflective parts of their training programme.((Health Practitioners Competence Assurance Act 2003 – New Zealand Government)) In a recent bulletin that discusses the Bawa-Garba case (underlining the global significance of this case) it was concluded that “identifying the trainee or fellow [in the context of portfolio reflections] would constitute a criminal offence.”((Health Practitioners Competence Assurance Act 2003 – New Zealand Government)) This does not mean that reflections would be beyond the reach of criminal law in New Zealand, but it raises the question as to whether more could be done to improve things in the UK.
The Bawa Garba case
Events post Bawa-Garba have thus enabled some positive steps forward for bereaved families, healthcare workers, and those who have the difficult task of investigating cases. But it is somewhat ironic that much of the urgency to resolve the long-running concerns about the damaging effects of the criminalisation of healthcare workers has resulted from the mistaken actions of the GMC. Its decision to apply to the high court in order to bring about the erasure of a trainee paediatrician who was working in extraordinarily difficult circumstances has not only exposed her plight, but created the opportunity for much-needed reform.((To Err Is Homicide in Britain: The Case of Dr Hadiza Bawa-Garba – S Jha, The Health Care Blog; 30 January 2018))((Jack Adcock case: Are hospitals doomed to repeat their mistakes? – The Times; 31 January 2018))
It is equally important not to minimise the tragedy of Jack Adcock’s death – his family’s search for accountability is understandable. Whether we have got the balance right between the GMC’s emphasis on maintaining public confidence in the medical profession, compared to protecting the needs and rights of individual health practitioners remains an ongoing dilemma. Many have questioned whether the adversarial nature of the criminal court can allow a lay jury the opportunity to weigh appropriately the individual, team and systemic contributions to a complex medical death.((Gross negligence manslaughter and the healthcare professional – J Vaughan, RCS Bulletin; February 2016))
The outcome of Dr Bawa-Garba’s appeal against the High Court’s decision to allow the GMC to erase her from the medical register, will be announced on Monday 13th august at 3pm and is keenly awaited.((Bawa-Garba vs GMC – Tim Johnson/Law))
Many healthcare professionals simply don’t agree with the way the GMC has handled the case, given the compromised system in which she was working that day and her previously unblemished career. Her QC, Mr James Laddie, told the Court of Appeal that it was in fact the MPTS’ decision which was “humane and balanced.”
Both the British Medical Association (BMA), the British association of Physicians of Indian Origin (BAPIO) and the Professional Standards Association (PSA) also applied as intervenors in the appeal. The PSA asserted that “deep-seated attitudinal problems” are typically a good reason for preventing a clinician from practising. Dr Bawa-Garba spoke publicly after the hearing, whole-heartedly apologising again to the family of Jack Adcock for her part in his death.
A further independent review of GNM and CH, initiated by the GMC and led by Dame Clare Marx**, will look at how cases of GNM and CH “are initiated and investigated” and should keep up the momentum to rebuild lost trust and provide more solutions.((Dame Clare Marx to lead medical manslaughter review – General Medical Council; 28 February 2018))
The recent publishing of definitive sentencing guidelines for manslaughter has also shown a constructive approach. These will be relevant to judges dealing with those convicted of GNM in the discharge of their duties.
Collective work by the author and a range of medical organisations, has also meant that judges will consider a range of mitigating factors that are not healthcare-specific but which are highly relevant to our working environment. These include whether the offender was subject to stress or pressure (including from competing or complex demands) and if the negligent conduct was compounded by the actions or omissions of others beyond the offender’s control.((Manslaughter, Definitive Guideline – Sentencing Council ; Effective 1 November 2018))
A strong signal has been sent to the criminal justice system: only performance which is ‘truly, exceptionally bad’ should be contested. Whether the courts will be happy to accept the conclusions of the authorities charged with clarifying this issue remains to be seen.
The ‘safe spaces’ proposed in the legislation before Parliament may not prove to be safe enough for clinicians to speak frankly((Call for evidence: Draft Health Service Safety Investigations Bill)). Thus, the seemingly enhanced protection for reflections negotiated by ANZCA((Health Practitioners Competence Assurance Act 2003 – New Zealand Government)) should be examined by the UK’s medical royal colleges in a timely fashion. Questions also remain as to whether the virtual specialist police unit will be resourced appropriately, and whether the issue of discrimination will be dealt with urgently enough to reassure certain groups of clinicians. We must hope that all these questions are answered positively. As a society we must not allow patient safety to be compromised by inappropriate criminal prosecutions of individuals. Patient safety must remain paramount by adopting a ‘just culture’ in healthcare. ((Reflecting on the Bawa-Garba case – Patient Safety Learning; 23 February 2018))((A ‘just culture’: improving safety and organisational performance – Maritime and Coastguard Agency; 6 May 2014))
* In July 2015 (before the conviction of Dr Bawa-Garba), several hundred doctors wrote to President of the Royal College of Surgeons to raise their concerns about the application of the law of gross negligence manslaughter. They raised multiple issues such as the escalating conviction rate, increasing defensive practice and the role of expert witnesses, especially after the imprisonment of David Sellu. The letter was later passed to the AOMRC. The Academy stated that they recognised the concerns expressed but indicated firmly that they did not wish to become involved in the regulation, vetting or registration of expert witnesses. Fourteen months after the original letter they convened a constructive meeting with healthcare practitioners, coroners and the MOJ.
** The Marx review (chaired by Mr Leslie Hamilton as Dame Clare Marx is now the new chair of the GMC) is in the final phase of taking written submissions. A series of workshops will be run in the autumn and it is hoped that its conclusions will further assist in this most difficult of areas.