An independent review, commissioned by the General Medical Council (GMC) into how gross negligence manslaughter and culpable homicide are applied to medical practice, has been underway for seven months.
A working group of 11 people with a range of experience and expertise (including hospital doctors, GPs and trainees in addition to those bringing the legal and patient perspectives) is taking forward the review, which is now chaired by Dr Leslie Hamilton. He has taken over from Dame Clare Marx, who stepped down after being appointed as the GMC’s new Chair to replace Professor Sir Terence Stephenson in January.
Here Dr Hamilton, a former consultant cardiac surgeon, introduces himself as the new Chair of the review and explains the group’s progress and plans for the remainder of the review.
Why this review is important
Doctors and patients both want a healthcare system which is as safe as possible. Yet doctors are human and humans will make errors.
We need a healthcare system in which errors are anticipated and the impact on patients is minimised. And when mistakes do happen we need to see an appropriate response from both the healthcare system and the regulatory system. All the research in high risk industries points to the need to identify and deal with problems in the system rather than target individuals to blame. We need to learn from errors. However, if a doctor intends deliberately to harm a patient or seriously violates accepted codes of practice, the criminal justice system should be applied. Doctors cannot be above the law.
Over the past few years there has been recognition of the importance of a ‘just culture’ – NHS Improvement say *’The fair treatment of staff supports a culture of fairness, openness and learning in the NHS by making staff feel confident to speak up when things go wrong, rather than fearing blame’. Yet the high profile conviction of Dr Hadiza Bawa-Garba, a trainee paediatrician, has understandably caused alarm within the profession.
It is a case to which doctors have paid close interest. A lengthy process ensued after the GMC challenged a decision by a Medical Practitioners Tribunal to suspend the doctor from practising rather than erase her from the medical register.
In August of this year Dr Bawa-Garba was reinstated to the register following a Court of Appeal judgment. One of the positive outcomes from this prolonged legal process has been confirmation of the independence of the MPTS, which some doctors have questioned.
Doctors report that this case has created a climate of fear within the medical profession, which is compounded by the increasing pressure of work, particularly for many trainees, who feel unsupported. My daughter has recently completed her training in Emergency Medicine so I am very aware of the issues.
There is a real problem and in the interests of patient safety, we need a solution. How the law of gross negligence manslaughter is applied in medicine needs to be reviewed with urgency.
It’s also vital for us to understand how the law around culpable homicide is working in Scotland and see if we can learn lessons. That’s exactly why we’ve set up an additional working group in Scotland.
We are looking at the whole process of investigation when a patient dies unexpectedly. This begins with a Serious Incident (SI) review in the organisation, through the whole spectrum to, in the most serious case, criminal charges. Clearly, if a doctor sets out to deliberately harm their patient, or if their conduct was reckless, criminal law should be applied. We will also be reviewing the role of the GMC in these cases.
My role as Chair
On the basis of her previous high profile leadership roles, Dame Clare Marx was an obvious choice to set up and lead the review. It is a real honour, but also a huge responsibility, to be taking over the reins of the review from her and I can assure people that none of the momentum she established will be lost. The work is well underway and we are making good progress.
As a cardiac surgeon I have had to deal with the impact on the patient’s family and psychological pressure on me of an unexpected death and involvement in a SI review. I was President of the Society for Cardiothoracic Surgery when cardiac surgeons took the decision to publish individual surgeons’ results – a sensitive and difficult decision but, in the interests of openness and patient safety, the right one.
The medical profession is at a crisis point. There is a climate of toxic fear. For the first time ever, places at medical school were available through “clearing”. We have heard reports that more trainees are keen to take an immediate break after completing their foundation training, with burnout and better work life balance being the motivators behind their decision. All leaders in the health system need to win back the confidence of doctors.
I believe that our review can help to do that. We need to make healthcare safer and that is by learning from mistakes and changing the system, not seeking individuals to blame.
Being appointed as the Chair of the review is a privilege, but I want to stress that this review is very much the work of the entire working group and shaped by feedback from the profession, the public and a range of relevant organisations. Recommendations will be based on the evidence we hear.
I have always had an interest in the legal aspects of clinical practice – I gave evidence to the Bristol Inquiry, the public inquiry into children’s heart surgery at the Bristol Royal Infirmary. I undertook a Masters (LLM) in Medical Law a few years ago which gave me a better understanding of the issues. I was on the Council of the Royal College of Surgeons when the issue of gross negligence manslaughter was debated – I raised the point that as deaths are reported to the coroner, the coroner has the very difficult decision to make in the absence of any guidance and lack of clarity in the law, as to whether a particular case raises such serious concerns that it warrants further investigation by the police. Since the original **Keogh Reviews, I have been involved with inspections for the Care Quality Commission.
I bring my clinical knowledge as a surgeon and my legal understanding to the review – I can bridge the two professions.
What is happening with the review?
In June we invited written submissions from doctors, patients and anyone with experience, expertise or an interest in the issues surrounding gross negligence manslaughter or culpable homicide, or in the aftermath of serious clinical incidents.
We received more than 800 responses and have been meeting with both individuals and organisations that have made suggestions about how the system can be improved. The evidence we are gathering will contribute towards our report.
We, as a working group, have been meeting each month to discuss the issues we’re hearing. One of the messages coming through very forcibly so far is about the importance of a competent and fair local investigation in the aftermath of an unexpected death of a patient which focuses on what has gone wrong and why, and what lessons can be learned, rather than on finding someone to blame. That is in the interests of both patients and doctors.
We have also gained further understanding of the views of doctors, their representative organisations and others by running workshops in London, Manchester, Cardiff, Belfast and Edinburgh. We also met with our specific working group in Scotland in September.
We will be publishing our report in early 2019.
If you’d like to share your views, please contact us via email.
For more information on the review visit the page on the GMC’s website.
*A just culture guide published by NHS Improvement on 15 March 2018.
**Review into the quality of care and treatment provided by 14 hospital trusts in England by Sir Bruce Keogh, published 16 July 2013