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.
Here Dr Leslie Hamilton, a former consultant cardiac surgeon, provides an update on the group’s progress and an analysis of the evidence presented so far.
Since my last blog we have concentrated on gathering and analysing evidence on the process which follows the unexpected death of a patient.
The process begins with a serious incident review by the trust or board then, if necessary, a referral to the Coroner, or in Scotland the Crown Office and Procurator Fiscal Service.
An inquest, if there is one, might be the trigger for a police investigation, the involvement of the Crown Prosecution Service in England and Wales or the Public Prosecution Service for Northern Ireland, and a potential criminal trial.
All this may depend on experts giving their opinions on the standard of care the patient received, so we’ve had a particular focus on how these experts are selected and the role they play.
And of course at the same time as this the General Medical Council (GMC) may have an open investigation, which could involve an Interim Orders Tribunal deciding if a doctor can continue to practise in the meantime.
Systems are one thing, but what about the individuals? Bereaved families, coming to terms with their loss while trying to understand what happened to their loved one and why; and doctors fearing for their careers.
Our review is challenging, in part because we passionately want it to make a difference to bereaved families and to doctors through a more consistent application of the law.
We want those families to receive good support and to feel involved in what happens, and we want to reduce the fear that recent events have induced in doctors, especially where it might intrude on their decision-making.
At the same time we want to improve patient safety by allowing doctors to feel able to admit their mistakes, so that systems can learn from errors.
Reading calls for an end to a ’blame culture’, and replacing it with a ‘learning culture’, in report after report over the last 20 years has been intensely frustrating because nothing has changed. However, calls to adopt a ‘no-blame culture’ give the wrong impression. ‘No blame’ has limits, if a doctor deliberately harms or wilfully neglects a patient then of course they should be blamed, and held to account.
Rather than talk about ‘blame’ or ‘no blame’, what’s needed is to cultivate a ‘just culture’, one in which doctors who make genuine errors, particularly when under pressure, are encouraged to admit to them.
If a patient comes to harm in such circumstances then the focus should be on how and why it happened, why the system has failed to protect the patient, and not on the actions of an individual doctor. Other high risk industries – nuclear, aviation, oil – assume that staff will make errors and so build in safety measures. Yet in healthcare there seems an assumption that as long as everyone tries hard enough it will be completely safe.
Gathering and analysing evidence for our review has been a major undertaking. We’ve met bereaved family members, groups such as Action against Medical Accidents and doctors who have been through investigations for gross negligence manslaughter.
We have also met with the Academy of Medical Royal Colleges, as well as individual colleges themselves.
We’ve heard from chief medical officers, the three major medical defence organisations, human factors experts, system regulators, quality improvement bodies and from the police.
And we are well aware that the system in Scotland differs from the rest of the UK, so we have established a separate group in Scotland to give us a full understanding of what happens there. We’ve spent time in Edinburgh meeting the Scottish Law Commission and the Crown Office and Procurator Fiscal Service.
Doctors’ representative bodies – including the British Medical Association, Doctors Association UK and the Association of Surgeons in Training – have given us their views. And, because we’re aware of concerns that BME doctors are over-represented in both GMC and criminal systems, we’ve talked to the British Association of Physicians of Indian Origin and the British International Doctors Association.
It was hugely important to us to hear directly from as many different voices as possible, including from those who have been through the process and who know, first-hand, what it is like and how it could be improved.
In all we held 20 oral evidence sessions, almost 40 one-to-one meetings, and held workshops, across all four UK nations, attended by around 200 people. On top of that we’ve had close to 800 written submissions, each of which has been analysed.
Some themes are emerging. The quality of local investigations; the importance of independent, impartial expert medical opinion; the involvement of, and support for, bereaved families; the prospect of ‘multiple jeopardy’ faced by doctors, and the level of support available to them, have all been raised, as of course, have the GMC’s processes.
We’ve brought all that evidence together, and we are beginning to formulate our recommendations. But before we can finalise those we still need other important evidence.
The GMC appealed the Dr Bawa-Garba case based on ‘maintaining public confidence in the profession’, which is one of its statutory aims, but we want to understand what factors influence that confidence. What do people think about how the GMC responds to a doctor’s actions, particularly if it’s a doctor with a criminal conviction? To look into this in more depth we’ve commissioned some independent research.
There is other ongoing work that may inform our review, such as research the GMC has commissioned, from Roger Kline and Dr Doyin Atewologun, looking into why certain groups of doctors are more likely to be referred to the GMC and to face investigation. And the Crown Prosecution Service has made some of its files, on cases of gross negligence manslaughter in healthcare, available for independent academic analysis.
Our aim is to publish our report in the spring. In the meantime, in England NHS Improvement has launched a consultation on a new ‘national patient safety strategy’ with a document that calls for a ‘just culture with openness and transparency’. I know it relates to England rather that the UK as a whole, but why not get involved here?
If you’d like to share your views on the independent review, please contact us via email.
For more information on the independent review, please visit the page on the GMC’s website.