Speaking at the launch of campaign group the Doctor’s Association UK (DAUK)’s Learn not Blame campaign in parliament yesterday, Mr Hancock said he felt ‘a lot can be done within the existing legislation’ to improve the culture around mistakes in the NHS.
But he told the meeting he was ‘open minded’ on calls to change the law to create a system in which doctors undergoing fitness-to-practise proceedings are not inordinately punished for ‘genuine mistakes’.
Broadcaster and health campaigner Nick Ross challenged Mr Hancock at the meeting, saying: ‘It’s time now to change the law so we stop imprisoning or threatening to imprison people who make genuine mistakes… It is harmful to threaten people with imprisonment when they have no mens rea to do something wrong. Particularly in clinical care where they’re actually trying to help, to save someone’s life.’
Gross negligence manslaughter
The term ‘mens rea’ - or ‘guilty mind’ - is used to determine whether an individual had intention or knowledge of wrongdoing. It is used in Scotland in culpable homicide investigations, but not for equivalent gross negligence manslaughter cases in England.
Mr Ross told the health secretary: ‘This is a real example of where we look to you for leadership… in making a clear declaration of "we want to learn and not blame".’
Mr Hancock replied: ‘If that’s where you think we need to get to then I am open minded to that. Obviously there is a lot of work that would need to go into it but I entirely understand why because it’s all very well us saying that this is the culture that we need - and I think a lot can be done within the existing legislation - but when you have either the GMC or the police breathing down your neck it doesn’t always feel like that.’
Earlier this year the government committed to legislative and policy changes relating to gross negligence manslaughter in healthcare set out as part of Professor Sir Norman Williams’ review.
The review was launched by former health and social care secretary Jeremy Hunt after he expressed ‘huge concern’ over the case of Dr Hadiza Bawa-Garba - a junior doctor who was struck off the medical register following a GMC appeal against her tribunal ruling. Dr Bawa-Garba has since been reinstated.
Recommendations included plans to strip the the GMC of its power to appeal decisions made by the Medical Practitioners Tribunal Service (MPTS). The Williams review warned that GMC appeals against tribunal rulings had created 'fear and mistrust' among doctors and were 'deterring reflection and learning from errors to the detriment of patient safety'.
Although the government has yet to pass legislation on this, Mr Hancock said that an ‘awful lot of work’ had been done and that changes ‘are going through’.
He added: ‘Each of these individual policy changes, important as they are, each of them is not as important as a change in culture, which is bigger than any one policy change. Now of course policy and the law can set culture - of course they do - and they are important for that.
'But they are as part of a much bigger change and we are only going to solve this problem in the NHS if we have a much bigger change which is about not just having in place the formal structures that allow people to speak up but having managers and leaders who encourage speaking up and who see criticism and proposals for improvements as opportunities to improve their institution rather than problems that need to be suppressed.’
DAUK Learn not Blame lead Dr Cicely Cunningham said full implementation of the Williams review recommendations would be ‘a very clear starting point’ in moving towards a more just culture within the NHS.
The Learn not Blame campaign was launched in the wake of the Bawa-Garba case and seeks to change the way medical error is approached in the UK.
DAUK has previously described Dr Bawa-Garba’s successful appeal as a ‘small step’ towards a more just NHS culture where doctors can practise ‘without the fear that the mistakes that they make under pressure are going to put their personal reputation and their professional life on the line.'