Newsflash: ‘A Just and Fair Culture in Medicine’ Independent Review of Gross Negligence Manslaughter Publishes its Report
In 2018 the GMC commissioned an independent review following the death of Jack Adcock and subsequent prosecution and conviction of Dr Hadiza Bawa-Garba for Gross Negligence Manslaughter. The review working group has now published its report, which can be read in full here.
The proceedings that followed Dr Bawa-Garba’s conviction, as GMC CEO Charlie Massey puts it with some understatement in a press release published with the review – ‘undoubtedly affected our relationship with the doctors we regulate’. Leslie Hamilton, Chair of the review, offers a starker analysis in his introduction – ‘the criminal conviction and actions of the GMC provided the immediate focus for doctor’s fears and a sense of injustice, but this was part of a more fundamental loss of confidence in the GMC and in the operation of a fair and just culture in medicine’.
The brief given to the independent review was to ‘thoroughly consider how the laws of gross negligence manslaughter and culpable homicide are applied to medical practice’.
Within this broad remit, the report does not seek to pass comment on whether there should be changes to the law on Gross Negligence Manslaughter. That said, it reads at times as tacitly encouraging reform. It quotes Sir Robert Francis and Professor Ian Kennedy in expressing the view that the law invites a jury to ‘make the law’ in determining whether a breach of duty is so serious as to be a crime. More explicit criticism is levelled at the way in which the law is applied in the early stages of investigation. The report cites concerns raised by the MDU that there were a ‘high proportion of cases’ that were ‘investigated unnecessarily’. These concerns are substantiated by the review’s findings: between 2007 and 2018, whilst ten doctors were prosecuted for the offence, there were 192 cases in which there had been CPS involvement following a police investigation.
It also expresses the view of doctors who have been the subject of investigation. One shared diary entries from the time, which make harrowing reading – ‘I feel like I was being hunted in a game in which I didn’t know the rules – not having control or an understanding is the worst part’.
Other concerns of note to those involved in representing doctors who come under scrutiny relate to the guidance available to Coroners as to whether to refer doctors to the police, and thereafter the consistency of the police approach to investigating the conduct of doctors.
The report makes 29 recommendations across the breadth of its terms of reference. Some suggest at least a change in tone in the way the GMC approaches its regulatory function: Recommendations 1 and 2 are that the GMC ‘must learn’ from the damage done in the Bawa-Garba case and must take ‘immediate steps to re-build doctors’ trust in its readiness to support them’.
Others are more explicit. The report agrees with the conclusion by the Williams Review in 2018 that S. 40A of the Medical Act 1983, which gives the GMC a right of appeal against the MPTS where it considers the decision is ‘not sufficient to protect the public’, should be revoked. The GMC have already acknowledged that it will lose its right of appeal, and has committed to not seeking to argue against repealing the provision. Recommendation 17 suggests that Coroners should not refer doctors to the police, in cases where they consider that their conduct might reach the threshold for Gross Negligent Manslaughter, without first raising it with the Chief Coroner’s Office.
The review suggests a change in practice in the way that the CPS and the police approach investigating the conduct of doctors. Recommendation 19 is that where the police receive notification of an unexpected death, they should seek ‘early access to appropriate, independent medical advice’ in order to determine whether investigation is warranted in the first place. It also suggests in Recommendation 11 a set of basic requirements for those giving expert evidence (either for the purposes of a criminal case, by the GMC, or by the Coroner). These include identifying in any report the basis on which the expert is competent to provide an expert opinion on standards of practice and to set out where their views might sit on the spectrum of possible expert opinion. Regulation 12 then suggests that doctors should only provide an expert opinion on matters ‘which occurred while they were in active and relevant clinical practice’.
In many respects the report reflects a broad recognition within the profession that the scrutiny exerted on doctors has become unsustainable. It remains to be seen whether these recommendations will lead to changes in either law or practice. It is further evidence though, that Bawa-Garba may have been a turning point in the way that doctors are investigated.
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