Patient Safety and the Law of Gross Negligence
The safety of patients depends on recognition of an error when it occurs, and concerted efforts to prevent its recurrence. The recent highly publicised prosecutions of healthcare professionals for gross negligence manslaughter (GNM) has increased fears that they will make patients less safe by eroding staff morale and resulting in the practice of defensive medicine – making clinicians more reluctant to disclose their errors for fear of criminal sanction. This makes error more likely, increases costs, and reduces the opportunities to learn from these failures. This meeting was convened and interested parties invited to address these important issues.
Welcome: Professor Roger Kirby, Chairman, Academic Board, Royal Society of Medicine
- ‘Does clinical practice change under threat of criminal prosecution?’. Dr Jenny Vaughan, Consultant Neurologist, Imperial College Healthcare NHS Trust.
- ‘The medical “expert” – the good, the bad and the ugly’. Dr Peter McDonald, Consultant Surgeon, Northwick Park and St Mark’s Hospitals, Senior Clinical Lecturer, Imperial College, London and Non-Executive Director, Medical and Dental Defence Union of Scotland.
- ‘The problem with GNM investigations and prosecutions from the medical standpoint’. Mr Ian Barker, LLB, Senior Solicitor, Medical Defence Union.
- ‘What happens when a doctor is referred to the GMC: Is the safety of the public or confidence in the profession at risk?’. Professor Sir Terence Stephenson, Chair, General Medical Council and Nuffield Professor of Child Health, Institute of Child Health, University College London; and Ms Anna Rowland, Assistant Director, Policy, Business Transformation and Safeguarding, Fitness to Practice, General Medical Council.
- ‘A coroner’s perspective – lessons from coronial investigations’. Ms Karen Harrold, Assistant Coroner and Head of the Appeals and Review Unit, Crown Prosecution Service.
- ‘Recent developments in the law on gross negligence’. Ms Zoe Johnson QC, Queens Counsel, QEB Hollis Whiteman; and Mr Philip Stott, Barrister, QEB Hollis Whiteman.
- ‘Prosecuting gross negligence manslaughter’. Mr Simon Ringrose, Unit Head, Special Crime Division, Crown Prosecution Service.
After a brief introduction, Dr Jenny Vaughan provided some evidence from her survey of more than 2000 doctors that the recent publicity surrounding gross negligence manslaughter (GNM) prosecutions against doctors had resulted in a more defensive practice of medicine. This included excessive investigation of some patients, anxiety about taking on high risk cases, and worries about being open about clinical problems when things did not go according to plan. The clinicians also cited probable recruitment problems in the future if the risk of criminal prosecution following a medical error was to loom larger.
Mr Peter McDonald, a consultant surgeon and experienced medical expert then discussed the very variable standards of so-called medical experts whom he divided into the ‘good, the bad and the ugly’. He mentioned the lack of regulation, the remuneration, and the issue surrounding the tendency of many of these experts continuing to opine long into their retirement.
Ian Barker, senior solicitor at the Medical Defence Union (MDU) then made the case for ‘fixing the problem – not the blame’. In his experience, of around 100 doctors investigated for possible GNM only 10 per cent were subsequently prosecuted, but the police investigation itself was often prolonged and the clinicians involved were suspended from practice and suffered severely from psychological distress. Mr Baker suggested that guidance from the Chief Coroner might reduce the number of unnecessary investigations and place those cases that should go to an inquest into that domain sooner, which would be better for all involved. He thought a closer working arrangement between experienced police and The Crown Prosecution Service (CPS) might speed the process up; along with closer cooperation between the CPS and defence cooperate to produce a common understanding of the law and ensure that experts know the principles they are asked to apply.
Professor Sir Terence Stevenson then expanded on the role of the GMC to keep both patients and doctors safe. He mentioned that the GMC are asked to review the practice of around 9000 practitioners each year but that only a third of cases are judged worthy of investigation, and only a very small minority (around 1%) so serious as to require erasure from the register.
Karen Harrold, Assistant Coroner, then summarised how the coronial system works in England and Wales. In 2016, 241,211 deaths were reported to coroners (the highest to date). The coronial system is inquisitorial not adversarial and does not apportion blame. There are 92 Senior Coroners supported by over 250 Area and Assistant Coroners, all of whom are independent judicial officers. A coroner must suspend an investigation if asked to do so by the police or the CPS because someone may be charged with a homicide, or a related offence, or when criminal proceedings have been brought against an individual. At an Inquest the Coroner (or Jury) must establish who has died (including when and where) and, importantly, how the person came to his death. At the end of the inquest, either a short form conclusion (formerly verdict) or a narrative conclusion is recorded. The legal definition of ‘neglect’, including neglect by medical professionals, was also discussed.
Zoe Johnson, QC, then provided a helpful insight into the flaws surrounding the prosecution of Mr David Sellu, FRCS, who was found guilty of GNM and served 18 months in prison, but whose guilty verdict was subsequently quashed on appeal. Ms Johnson also reviewed the prosecution of Honey Rose the optometrist who missed a diagnosis of hydrocephalus; and the case of Dr Rudling, a GP in Wales, who failed to diagnose Addison’s disease. These cases established that the risk of death from the breach of duty has to be ‘serious and obvious’ at the time of the breach.
The morning session concluded with Simon Ringrose from the CPS, who described the process by which ‘suspicious deaths’ were investigated and how the CPS arrives at a decision to charge. Referrals can come from the police, the coroner or relatives. In order to prosecute, the CPS has to consider that a jury is more likely than not to find that the negligence leading to death was ‘truly exceptionally bad.’ CPS investigates around 30 cases per year, of which about six are prosecuted and two result in conviction.
These were organised to address a series of questions by round-table discussion. A range of issues were discussed, including the length of investigations and the need for greater uniformity of decisions to investigate or prosecute.
Coroners have sometimes appeared inconsistent in their decisions to refer cases to the police, though this was admittedly considered uncommon. One way to improve uniformity would be to ask the Chief Coroner to look at all potential referrals to the police; however, it was not altogether clear that this would reduce the number of referrals. A second opinion might be helpful, as well as saving time and money. Coroners are independent, so the Chief Coroner could only act in an advisory capacity, and such advice could also come from a cadre of experienced coroners.
The Chief Coroner should, in any event, be asked to reconsider his Information Law Sheet on homicide (in the light of recent rulings) to provide up-to-date guidance for his colleagues on when cases might merit referral to the police. Lord Justice Leveson has teased out and clarified what has always been there in the recent appeals.
Families as well as doctors suffer from the length of time investigations may take.
More Information is required on the extent of the problem
There are around 15 cases of gross negligence manslaughter and 15 cases of corporate manslaughter per year being investigated through the National Crime Agency. However, this figure may not represent the true numbers as there are multiple concurrent investigations, which don’t necessarily proceed to formal charges. There is currently little information on the various earlier stages, of coronial referral to the police, and police referral to experts.
In order to understand why these charges are being considered in the first place work needs to be undertaken on who refers, what the rates of referral are and what the consistency is. Some attendees present were reluctant to accept that a national unit to investigate cases and establish learning would be appropriate, but recognised that training and a sharing of experience on a regional basis could be beneficial. The CPS also guides the police in these cases, but it is not always consulted in the early stages of an investigation.
Problems with Expert Witnesses
There are two types of medical experts—those who do it as part of their living (eg forensic pathologists) and those who choose to do it. Variability is a worry, and it might help to have a checklist of reliable individuals.
There is a real difficulty in finding appropriate experts and a real problem about fees. The process is difficult and the NHS provides little support. A doctor stated that there are very few experts worth recommending who would be prepared to accept current fees for criminal work. An opposing view was that good experts can usually be found by word of mouth.
Experts may also judge the actions of others by their own (expert) standards, rather than those of an averagely skilled practitioner.
Threshold for GNM versus simple medical errors – how can this be resolved?
The Secretary of State for Health might look at this as a societal public health issue.
Examples where in GNM cases not found guilty include:
- An intubated oesophagus resulting in death; conclusion = not gross negligence.
Examples of recent unsafe GNM convictions include:
- R v Sellu  EWCA Crim 1716, All ER (D) 114 (Nov) .The judgement has wide ramifications well beyond medical manslaughter. It distinctly clarifies that trial judges must give juries robust guidance as to the nature of the negligence that must be proved to establish GNM. This ensures consistent and appropriate directions for all future cases. An important clarification for the role of experts was also provided, stressing the limit of their role in the court process so as not to infringe jury’s role and decide ‘the ultimate issue’. The conviction of David Sellu was quashed and no re-trial ordered. His case has already been applied (R v Rose  EWCA Crim 1168 (Aug)).
Worryingly, there is variation of white vs black and ethnic minority practitioners (most convictions in the last 20 years are black and ethnic minority (BEM) individuals). Most white practitioners were found not guilty on same charge.
Link and causation
In some cases it is clear that causation could not be established from any breach, and those investigations might be resolved rapidly.
Other questions to be considered:
- What level of experience/expertise should be expected of those investigating these allegations?
- Is there a case for sharing investigation experience, best practice, and resources at a regional and/or national level?
- If speed of decision-making is of value, might that be assisted by a requirement for there to be liaison between the police and the CPS at the outset?
- What can we do to ensure we get the highest quality expert evidence?
- To what extent should deficiencies in systems play a part in the evaluation and consideration of GNM cases?
- What effect will recent judgments (including Sellu and Honey Rose) have on the law of gross negligence?
- If the speed of decision-making is of value, might that be assisted by a requirement for there to be liaison between the police and the CPS at the outset?
- To what extent should deficiencies in systems play a part in the evaluation and consideration of GNM cases?
The meeting concluded with a summary by Sir Robert Francis, QC, who agreed that there was indeed a problem and that the morale of the medical profession, and consequently patient safety, were seriously at risk. The case of Mr David Sellu, FRCS, and more recently that of Hadiza Bawa-Garba, MRCPCH, have resulted in considerable disquiet and a loss of confidence in the system. There is a significant risk in the development of the practice of defensive medicine, early retirement from medicine, and genuine concern that young people may be discouraged from joining the profession. A further meeting to address these issues was strongly recommended.
An article on the issues surrounding GNM prosecutions by Simon Wessely and Roger Kirby has been published on the RSM website: https://www.rsm.ac.uk/about-us/latest-news/president-updates/january-2018.aspx
To read and comment on the blog on the case of Dr Hadiza Bawa-Garba, MRCPCH, please click here.