When a patient dies following mistakes in their care, the opportunity to learn lessons can easily be overtaken by a rush to find someone to blame.
There are many ways that doctors can be held to account, but currently in the MDU’s experience, investigations for gross negligence manslaughter are happening far too often.
The case of Dr Hadiza Bawa-Garba has been in the headlines but she is not alone. Since 2014, the MDU has assisted just under 40 members with such investigations, including GPs, and four of these cases arose in the last four months alone.
The cost to everyone involved in a manslaughter investigation is high. In addition to the distress felt by the individual concerned, the use of the criminal law, generates widespread fear and concern among healthcare practitioners.
An adversarial criminal trial to determine an individual's guilt isn’t the best forum to analyse the many different human and systemic factors that are likely to have played a part in the death of a patient. For example, it is too simplistic to find a GP wholly responsible for an overdose if there were flaws in the computer systems or a desperate staff shortage which creates an impossible workload.
Gross negligence manslaughter
Sir Norman Williams’ recent review of gross negligence manslaughter rightly recognised that the current system has to be changed to ensure greater fairness and consistency for doctors, while still ensuring families and relatives get the answers they need.
In our submission to the Williams’ review, based on the experience of our in-house specialist criminal solicitors, we contended that the incidence of investigation and prosecution of clinicians is much too high, when it should be reserved for only the most egregious cases where prosecution is in the public interest. As of 2015, it was understood that fewer than one in ten police investigations relating to healthcare professionals led to a prosecution which suggests a significant level of over-investigation.
There is also an urgent need to improve the speed of the process and decision-making. A drawn out investigation is unfair on those being investigated, and equally difficult for the families of deceased patients who may well have to wait until the subsequent inquest to find out in any detail what happened.
A number of our proposals were accepted as recommendations in the Williams’ report including the need to update and clarify guidance for coroners and the police, the establishment of a specialist police unit, and for a joint group to agree a clear explanatory statement of the law on gross negligence manslaughter.
The review also recommended reviewing all causal factors in an investigation, recognising that individual errors very rarely arise in isolation. All these don’t need legal change and, should help to improve the situation. The recommendation that reflective notes are not used by regulators in disciplinary hearings should help to reassure the profession if implemented.
The fact that the MDU continues to receive requests for help from GPs who have been invited for police interview means that there is no time to lose. Of course, GPs and all doctors should be accountable for their actions but the process must be fair and only deal with those cases which are the medical equivalent of deliberately driving down the motorway on the wrong side.
- Ian Barker is senior solicitor, Medical Defence Union (MDU)