July 4, 2018

The rapid review of gross negligence manslaughter in healthcare - what happens now?

Now that the dust has settled on the Williams Report into gross negligence manslaughter (GNM) in healthcare, how has it been received and what can we expect now?

The common theme, both underpinning the review itself and the commentary since its release on 11 June 2018,  is the need for a dramatic shift away from the current culture of blame when things go wrong in a healthcare setting, to an open learning culture. It remains to be seen whether implementation of the recommendations, focussed on changes to how medical deaths are investigated, will bring the momentum needed to achieve the shift from the well embedded culture of fear and blame and "dispel fear and within the healthcare professions and improve patient safety."

The rapid policy review was requested by the Health Secretary Jeremy Hunt in February 2018 and his initial response to the review indicates a commitment to supporting a change in culture to an environment where learning from individual and systemic errors is encouraged: "I was deeply concerned about the unintended chilling effect on clinicians' ability to learn from mistakes following recent court rulings, and the actions from this authoritative review will help us promise them that the NHS will support them to learn rather than seek to blame."

Recommendations for change

The review's recommendations included:

  • A working group is to be set up to set out a clear explanatory statement of the law on GNM: although the timescale is unclear, this a long overdue opportunity to ensure that there is clarity for everyone involved;
  • Recommendation that the Chief Coroner should review guidance on GNM in response to the working group statement;
  • Developing a framework of good practice for medical expert witnesses in GNM cases and the role that medical Royal Colleges should play;
  • A new Memo of Understanding should be agreed between relevant bodies including healthcare regulators in relation to the investigation of deaths in a healthcare setting; and
  • The General Medical Council (GMC) to lose their right of appeal of decisions by the Medical Practitioners Tribunal Service (MPTS) - requiring a repeal of s40A of the Medical Act 1983 - and the recommendation that they should no longer be able to compel a doctor to produce reflective material during Fitness to Practise (FTP) investigations.  However, the way in which this material is used by authorities requires further clarification and so this will remain an area of deep concern for the medical profession and those of us who advise them.

How has the medical profession and the medical regulator responded to the Williams Review?

The GMC is "disappointed" by the review recommendations, both that they have lost their right of appeal of MPTS decisions and that they no longer have the power to compel a doctor to produce reflective statements. Despite the GMC's submission that a doctor's reflections be legally privileged, the review panel declined to take this forward as a recommendation. The review has however recommended that regulators clarify (and if necessary produce guidance on) how healthcare professionals carry out reflection.

Despite the Professional Standards Authority's right of appeal being left untouched, the GMC states that the removal of their right to appeal MPTS decisions, which has been successful in 16 out of 18 cases since its introduction in 2015, "will significantly reduce our ability to protect patients." The GMC has vowed to reflect on the observations in the review and it remains to be seen whether the internal reflection will be aired publicly and shared with the profession. Undoubtedly, the long established tension between the medical profession and the GMC remains.

The GMC aside, the Williams review has received a largely positive response from the profession.

The British Medical Association (BMA) has welcomed the removal of the GMC's right of appeal, highlighting that this brings the regulatory regime for doctors back in line with that of other healthcare professionals. Like the GMC, the BMA had called for full legal protection of doctor's reflective material which "would foster an open environment to apply systemic analysis to adverse events to improve patient safety" but this was not considered 'workable' by the review.

One of the prominent medical defence organisations, Medical Protection, has also welcomed the recommendations, having been long opposed to the GMC's right of appeal. Medical Director Dr Rob Hendry has also recently called for the government to act swiftly in bringing about the legislation required to enable this change. Medical Protection had consistently argued that the GMC's power to appeal decisions of the MPTS was "unnecessary duplication" (in addition to the existing power of the PSA) and the separation of the adjudication function of the MPTS was diminished by this right of appeal. The BMA shared the view that the GMC's power to appeal decisions of the MPTS risked undermining doctor's confidence in the independence of the adjudicator.

The Williams report referred to 'mistrust of the GMC by doctors and expressed a hope that the recommendation will help to address this and "contribute to a culture of openness that is central to delivering improved patient safety." Such is the extent of the mistrust, the medical profession is likely to remain sceptical of the GMC and, rightly or wrongly, there may be a perception that having lost the right of appeal the GMC may now recommend more severe sanctions at MPTS fitness to practise panel hearings.  This view is indicative of the profession's mistrust of the GMC and the need for the MPTS to both be, and appear to be, independent from the GMC, has never been greater.

This review stemmed from the tragic and untimely death of a child and it is important to restate, as outlined in the review's conclusions, that individual doctors and healthcare professionals should be held to account. There is a common hope that this review will provide much needed clarity for those of us who advise healthcare professionals facing GNM investigations, for the professionals themselves, and for grieving families and the need to avoid the "inappropriate criminalisation of medical error, especially in the context of wider systemic factors" (as articulated by the BMA in their response to the Williams review).

The review represents significant progress in reaching a position of clarity. There is a clear acknowledgement from the review report itself, and the resulting initial commentary, of the "profound effect" on all who are involved when things go wrong.  Professor Williams' statement in his letter to Jeremy Hunt prefacing his report  that "when things go wrong it is rarely a result of one individual's error", clearly acknowledges at the outset that addressing mistakes should consider the circumstances in which a healthcare professional is working, more often than not under extreme pressure, in an understaffed department with insufficient beds. There is no dispute that as long as the focus is on individual mistakes, fostering a culture of fear and defensiveness will mean fewer lessons are learned and patient safety will continue to be compromised.

This is undoubtedly a huge step in the right direction in moving away from a culture that seeks to blame, towards a healthcare system where there is a genuine and embedded culture of being open and transparent about mistakes, without the fear of  individual consequences. However, this is likely to be a slow process. "Whose fault is it?" may still be the first question asked.

To see our other articles on the regulation of the healthcare sector in the UK, please click here.