Williams rapid review
14th June, 2018
The rapid policy review of gross negligence manslaughter (GNM) in healthcare, as led by Professor Sir Norman Williams, published its recommendations on 11 June 2018.
The review, as ordered by Health and Social Care Secretary, Jeremy Hunt, on 6 February 2018, was established to consider GNM in medical cases following concerns voiced after the conviction and subsequent erasure from the medical register of Dr Bawa-Garba.
In the wake of the case of Dr Bawa-Garba, many healthcare professionals voiced concerns that relatively simple errors in clinical management could leave them at risk of prosecution for GNM, even if those mistakes occurred within the context of broader organisational and systemic failings. Concerns were also expressed that this in turn could discourage healthcare professionals from being open and transparent in the event an error occurs.
The purpose of the review was not to recommend changes in the law, but rather to examine the process by which decisions are made within the current legal framework, providing information and understanding. Though the review is advisory, the recommendations have already been endorsed by the Health Secretary, Jeremy Hunt.
The recommendations “aim to support a just and learning culture in healthcare, where professionals are able to raise concerns and reflect openly on their mistakes but where those who are responsible for providing unacceptable standards of care are held to account. This will lead to improved patient safety.”
In addition to recommendations specifically in relation to GNM, the review includes recommendations relating to the protection of professional’s reflections, the removal of the General Medical Council’s (GMC) power of appeal, further training for experts and a more thorough investigative process where an individual is to be investigated for GNM.
The following is intended as a summary of some of the key recommendations arising from the review.
1. Allegations of GNM against healthcare professionals
The review criticised the lack of consistency during the investigative process of healthcare professionals. The legal threshold for a conviction for GNM is high and investigations seldom result in prosecution with those involved in the investigatory process being caused unnecessary uncertainty and distress. Since 2013, 151 cases of suspected GNM involving a healthcare professional have been investigated. In 85 of these cases, no further action was taken by police at an early stage of the investigation. In 43 of the cases, the Crown Prosecution Service (CPS) decided to take no further action after a full investigation and only 7 cases resulted in prosecution, leading to 4 convictions and 3 acquittals. A further 16 cases are still under review by the CPS.
It is recommended that the starting point to improve consistency in investigations of GNM is to ensure that there is a shared and accurate understanding of how the law of GNM is applied to healthcare professionals so that only those cases where the actions of the professional are “truly exceptionally bad” will face investigation and possible prosecution. A working group (including representatives from the CPS, medical defence organisations, the coroners service and Treasury Council) is recommended to provide an explanatory statement, with all relevant organisations to produce guidance based on the explanatory note. It has been specifically recommended that the Chief Coroner revise his Guidance Note on GNM.
The recommendation is that the Care Quality Commission should be given the remit to carry out its own investigations into healthcare providers parallel to police investigations. It is thought that this collaborative approach will allow systemic issues and human factors to be considered alongside the individual actions of healthcare professionals. A memorandum of understanding is recommended between all bodies who have an investigatory duty within healthcare settings.
Recommendations are made relating to the use of experts in GNM investigations and cases to provide greater assurance and consistency.
2. Reflective material
In response to concerns relating to the use of personal reflections by the CPS and GMC, despite assurances from the GMC that they would “be highly unlikely” to form part of any fitness to practice investigation, the review includes a recommendation that the Royal Colleges and regulators amend guidance on how healthcare professionals undertake reflection, stressing the value of reflective practice in supporting continuous professional development.
The GMC has issued a press release specifically addressing the recommendations regarding reflective material, stating that the review has missed an opportunity to promote a genuine learning culture by failing to provide doctors’ reflections with privilege.
3. Professional regulation
The recommendation is that the Professional Standards Authority (PSA) should retain its right to appeal a decision of a fitness to practise panel to the High Court on the grounds of insufficient public protection. The duplicate power provided to the GMC however to appeal decisions of the Medical Practitioners Tribunal Service (MPTS) to the High Court should be removed. The review suggests that removing this right will ensure that the appeal process will be more consistent.
In response to the recommendation that the GMC lose its right to appeal, the GMC has stated: “‘We are also surprised that the review has focused on the GMC’s right of appeal given the case remains before the courts. If the recommendation to remove this is pursued, it will significantly reduce our ability to protect patients.”
The GMC went on to state that “Our appeals have been upheld in 16 out of 18 cases heard by the courts. We believe our actions have provided greater public safety and maintained public confidence in the profession through these rulings, all but one of which involved sexual misconduct or dishonesty.”
4. Bereaved families
The review recommended that bereaved families should be provided with greater support, being kept informed in a timely manner of any untoward event which may have contributed to the death of a loved one, by being given the opportunity to be actively involved in the investigative/regulatory process and to be treated with respect and receive honest explanations when an error occurs.
Responses to the review
Jeremy Hunt has reacted to the recommendations made by stating that doctors should not face prosecution where “honest mistakes” harm or kill patients. He has pledged that in order to ensure patient safety and a culture of learning from mistakes, senior doctors acting as medical examiners will look at every death that is not reviewed by coroners. Jeremy Hunt has reassured bereaved families that there will be increased support, allowing for more information regarding a loved ones’ death to be shared and for lessons learnt to be shared across the NHS to prevent avoidable loss of life. He plans to announce a new programme which will offer NHS Consultants confidential data on their own clinical results and a nationwide comparison of their performance to aid improvement.
The GMC have expressed disappointment with the recommendations in their response. Having noted that they are surprised at the review’s lack of endorsement of their own recommendation to provide privilege to doctor’s reflections, the GMC concluded that they believe that a culture of learning applies to the GMC as much as to doctors. It will reflect on the review’s observations before commenting further.
The Chief Executive of MDDUS, Chris Kenny, responded to the review saying: “We agree the need for high standards and current relevant clinical experience for expert witnesses and welcome the proposed clarification on not using reflective material for fitness to practise investigations unless, of course, the practitioner feels it is relevant. The proposals to ensure greater understanding of the law and more consistency in policy and coronal actions are also welcome.”
Although uncertainty remains as to how the recommendations will be implemented (if all are), it is inevitable that there will be a variety of changes implemented in a bid to provide consistency and clarity to the legal process of GNM and its application to healthcare professionals. The British Medical Association (BMA) has stated that they will be monitoring closely how the law is applied in light of the Review. Dr Chaand Nagpaul, BMA Council Chairman, said: “If we, as doctors, and the wider health service are to learn from these mistakes and to prevent such tragedies occurring, the NHS needs a dramatic shift away from the current culture of blame.”
In the meantime…
In the meantime, healthcare professionals should continue to refer to guidelines set by the GMC and other relevant regulatory bodies, as below, as well as ensuring that they adhere to the statutory duty of candour and the appropriate Trust’s policies. They should remain informed regarding GNM and be aware that updated guidance following the review is likely.
Guidance to doctors:
- Refer to the GMC’s ethical guidance documents including Duty of Candour and Raising and Acting on Concerns
- Raise any concerns that you may have with your manager/the consultant in charge/practice partner straight away.
- Keep detailed written records of any concerns and what practical steps you have taken and complete any reflection as required.
- For doctors working in NHS or NHS foundation trusts, ensure that you know who your guardian of safe working is and how to contact them. (In England, all organisations employing or hosting 10 or more trainees are required to appoint a guardian of safe working. Organisations with fewer than 10 trainees must make one available through another NHS organisation. Your guardian of safe working will be able to offer guidance and support if you are not able to speak up through your normal line management chain.)
- The GMC advises doctors against refusing to work, instead escalating concerns and working with colleagues and employers to find a solution to provide the safest level of care.
Guidance to doctors in a leadership or management position:
- Refer to the GMC’s Leadership and Management for all Doctors
- Ensure that those you manage have appropriate supervision (close personal supervision or managed system with clear reporting structures)
- If you are responsible for supervising staff, make sure you understand the extent of your supervisory responsibilities. You must be satisfied that the staff you supervise have the necessary knowledge, skills and training to carry out their roles.
Guidance to Trusts:
- Refer to the GMC’s guidance on Raising and Acting on Concerns
- Put systems and policies in place to allow concerns to be raised and for incidents, concerns and complaints to be investigated promptly and fully.
- Do not prevent or try to prevent employees or former employees from raising concerns about patient safety.
- Ensure that clinical staff are aware of their duty to be open and honest about incidents or complaints with both patients and managers.
- Make sure all other staff are encouraged to raise concerns they may have about the safety of patients, including any risks that may be posed by colleagues or teams.
- Make sure staff who raise a concern are protected from unfair criticism or action, including any detriment or dismissal.
If you would like to discuss any of the above content or have any questions, please do not hesitate to contact Liz Hackett.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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