English law on gross negligence manslaughter in healthcare must move towards Scottish position

The law that is applied in gross negligence manslaughter (GNM) cases in healthcare should move towards Scotland’s comparable offence of Culpable Homicide, where charges are only brought against doctors if an act is proved to be intentional, reckless or grossly careless, the Medical Protection Society (MPS) said today.

In its response to Professor Sir Norman Williams’ review into GNM in healthcare, MPS said the legal bar for conviction in England and Wales – which does not require intent or recklessness or a public interest test – is too low and is resulting in good doctors being criminalised for unintentional and often system-wide mistakes that are devastating for all involved.  

It said the law and its application in Scotland - which has seen one attempted prosecution resulting in acquittal - is better suited to determining the culpability of a doctor in a patient death and whether a prosecution is in the public interest. 

MPS urged a bold approach when considering law reform on GNM in healthcare – shifting it more into line with the legal test for Culpable Homicide in Scotland, and placing a requirement on the Director of Public Prosecution to authorise all GNM prosecutions involving healthcare professionals.

Dr Rob Hendry, Medical Director at the Medical Protection Society, said: “The public and medical profession would expect that extreme cases where there is intent to cause harm or a high degree of recklessness result in prosecution – and we support that. 

“Most medical manslaughter cases are however more complex, involve systems failures, and are devastating for all concerned. Dr Bawa-Garba’s conviction is a case in point, and the strength of feeling on this and its implications for an open, learning culture in healthcare, has been palpable. 

“A striking feature of the law in England and Wales is that intent, carelessness, or recklessness is not required for a conviction. The legal bar is too low and it is hard to see who benefits – a family has lost a loved one through tragic circumstances, a doctor may lose their career and face a prison sentence, the NHS has lost a valuable doctor, and fear of personal recrimination becomes increasingly embedded across healthcare.

“Opportunities to reform the law surrounding medical manslaughter have not been seized. We recommend the law is moved more into line with the legal test for Culpable Homicide in Scotland, which requires an act to be intentional, reckless or grossly careless. 

“While the legal and judicial systems in the two countries are different and it is not possible to transpose proceedings for one case from one jurisdiction, into another, there is a real question of whether many cases in England and Wales would have made it to court in Scotland in the first place.

“A further salient point from the approach in Scotland is that the prosecution of a healthcare professional for Culpable Homicide must be considered by the Procurator Fiscal and authorised by the Lord Advocate before it can proceed. The Director of Public Prosecution could fulfil this role in England and Wales to ensure the vital question of whether public interest is served by a prosecution is considered. 

“There has never been a more important time for reform, and we stand ready to work with Professor Sir Norman Williams and the Government on some bold and much needed changes.”

END

Notes to editors
Read MPS’s full response to the review here.

For further information contact: E: [email protected] T: 0207 640 5290

The rapid review into Gross Negligence Manslaughter in healthcare was announced by Jeremy Hunt MP on 6 February. The review, looking at England and Wales, will be led by Professor Sir Norman Williams, former President of the Royal College of Surgeons, and will report back by the end of April 2018.

Summary of all MPS recommendations:

Setting a more appropriate bar for criminal proceedings

1. We strongly advocate that the English law on Gross Negligence manslaughter is reformed, and moved towards the Scottish position and the legal test for culpable homicide. The UK Government should establish a judge led inquiry, co-chaired by a senior member of the English & Welsh judiciary and the Scottish judiciary; the inquiry should be tasked with assessing how a comparable offence of culpable homicide could replace GNM in England & Wales.

2. A requirement should be placed on the Director of Public Prosecution to personally authorise all prosecutions involving a healthcare professional accused of GNM.  They should also be under a requirement to issue a public statement on why the public interest is being served by that prosecution.

Improving investigations

3. National guidelines should be created for investigating healthcare professionals suspected of GNM, and all such investigations should be carried out by a designated ‘lead’ police force. A specialist unit should be established within that ‘lead’ force, with an overarching objective to conduct investigations in a consistent and timely manner.

Protecting a learning culture

4. Written reflections with the sole purpose of education and training should be given special, legally privileged status. This should include reflections in all education and training documents, such as e-portfolios and all annual appraisals, training forms and the Annual Review of Competence Progression - whether completed by a doctor or a consultant/supervisor.

5. The recent amendment to Section 35 1A of the Medical Act 1983, which would enable the GMC to compel registrants to disclose information that could incriminate them (including personal reflection), should be repealed.

6. To build a much needed ‘safe space’ for reporting and learning, the Government should accelerate the process of giving the Healthcare Safety Investigation Branch (HSIB) a statutory underpinning.  The HSIB should give legal protection to individuals (and their comments) engaging with an investigation. This protection should prevent any of their disclosure from being passed to a third party – including the regulator, employers or the police.

7. Medical schools should provide greater resource to educating students on reflection and anonymisation – to ensure they understand the purpose, logical thought processes and are armed with the tools they need for modern day clinical practice, which calls for reflection.

Improving the approach of the General Medical Council

8. Section 40A of the Medical Act 1983 should be repealed, and the GMC should lose its right to appeal decisions of the MPTS. This power should rest solely with the Professional Standards Authority (PSA).

9. The GMC should not be granted presumption of erasure powers, to remove a registrant from the medical register following a criminal conviction. It should be for the MPTS to determine what sanction is appropriate. The Department of Health should confirm publically, as soon as possible, that the GMC will not be granted this power.

10. The governments of the UK should review how the role and powers of the MPTS can be better defined in legislation. The question of how the MPTS can be given further operational independence from the GMC should also be explored as part of this process.

About MPS:
The Medical Protection Society (“MPS”) is the world’s leading protection organisation for doctors, dentists and healthcare professionals. We protect and support the professional interests of more than 300,000 members around the world. Membership provides access to expert advice and support together with the right to request indemnity for complaints or claims arising from professional practice.    

Our philosophy is to support safe practice in medicine and dentistry by helping to avert problems in the first place. We do this by promoting risk management through our workshops, E-learning, clinical risk assessments, publications, conferences, lectures and presentations. MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association.