Bar 'remains too low' for prosecuting doctors over mistakes

Doctors will remain at risk of being criminalised for 'unintentional and often system-wide mistakes' unless the UK government overhauls gross negligence manslaughter laws, experts have warned.

High Court (Photo: Chris Mansfield/Getty Images)
High Court (Photo: Chris Mansfield/Getty Images)

The warning came after the GMC published findings from an independent review into gross negligence manslaughter and culpable homicide, commissioned by the regulator after its handling of the case of Dr Hadiza Bawa-Garba triggered widespread fears among doctors about a 'culture of blame' in the NHS.

The review found that doctors' confidence in the GMC had been 'severely damaged' following the Bawa-Garba case, and set out 29 recommendations to help rebuild trust.

But it acknowledged that its remit was simply to consider how existing laws are applied and could be improved - and did not extend to calling for a change in the law. It recognised, however, that 'for some, realising a just culture means changing the law surrounding gross negligence manslaughter'.

Medical manslaughter

Responding to the review, Dr Rob Hendry - medical director with the defence organisation Medical Protection - said: 'The government now needs to act quickly to review the case for reforming gross negligence manslaughter law in England so that charges are only brought against doctors if an act is proved to be intentional, reckless or grossly careless.'

The GMC-backed review highlighted that in Scotland, where the 'culpable homicide' law differs from gross negligence manslaughter laws that apply in England, 'we have not identified any convictions of a doctor for culpable homicide linked to the discharge of their medical duties'. In England, around one doctor is prosecuted each year for gross negligence manslaughter.

Dr Hendry said: 'The law and its application in Scotland is much better suited to determining the culpability of a doctor in a patient death and whether a prosecution is in the public interest. The independent reviews set up by the government and the GMC have set out an important range of proposals that need proper consideration, but neither were set up to consider the fundamental issue [of reform to gross negligence manslaughter laws].'

The GMC-backed review explains the difference between the law in England and Scotland. 'What distinguishes culpable homicide from gross negligence manslaughter is that culpable homicide requires the presence of a mental element - 'mens rea'.

Recklessness

'The death may have been caused by an act or conduct in the face of obvious risk which was, or should have been, appreciated and guarded against, but to constitute mens rea there must have been a total indifference to or reckless disregard of the potential dangers and consequences which might result. Mere carelessness or negligence are not sufficient to constitute mens rea for the purposes of culpable homicide.'

Dr Bawa-Garba was convicted of gross negligence manslaughter after the death in 2011 of six-year-old Jack Adcock at Leicester Royal Infirmary. A medical tribunal subsequently ruled that she should be suspended for 12 months - but the GMC struck her off the medical register after challenging the sanction imposed by the tribunal in the High Court.

This decision - which saw LMCs carry a vote of no confidence in the GMC, a boycott of written reflection, and a public statement from former health secretary Jeremy Hunt that he was 'deeply concerned' about the unintended consequences of the GMC's actions - was overturned on appeal.

The review says the GMC's handling of the Bawa-Garba case left many doctors feeling 'unfairly vulnerable to criminal and regulatory proceedings should they make a mistake which leads to a patient being harmed'.

Confidence in the GMC

In the foreword, review chair Leslie Hamilton wrote: 'The decision of the GMC to seek this doctor’s erasure from the medical register following her criminal conviction caused consternation and outrage across large sections of the medical profession in the UK) and overseas.

'Some described it as a "toxic fear". Many questioned why an individual trainee working under pressure should carry the blame for what they considered to be wider systemic failings within her working environment. They recognised her situation in their own working lives and felt that "there but for the grace of God, go I".’

GMC chief executive Charlie Massey warned last year that prosecutions for gross negligence manslaughter were a postcode lottery across England because of regional variation in how coroners report deaths and how police forces decide whether to investigate.

Proposals in the Hamilton review for local coroners to seek advice from the Chief Coroner's Office before taking a potential gross negligence manslaughter case to the police have been welcomed by the BMA, and defence organisations including Medical Protection, the MDDUS and the MDU.

The BMA said that this move, and a call for a more consistent approach among healthcare providers carrying out local investigations could reduce the number of cases being 'escalated to the criminal justice system' or referred to the police.

But as the review acknowledges, calls remain for a complete overhaul of gross negligence manslaughter law. Dr Hendry said: 'While the bar in England remains too low, there will continue to be a risk that good doctors will be criminalised for unintentional and often system-wide mistakes that are devastating for all involved.'

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