When Things Go Wrong: Consent, Manslaughter and (Gross) Negligence

On Friday 26th October the Anaesthesia and Patient Safety Sections of the Royal Society of Medicine held an all-day meeting entitled ‘When Things Go Wrong: Consent, Manslaughter and (gross) Negligence’ to consider the implications of the current law in relation to negligence and gross negligence illustrated by the convictions of David Sellu and Hadiza Bawa-Garba and implications for patient safety in the UK.

The first speaker of the day was Mrs Ruth Poole, former nurse and now a successful businesswoman, whose fifth child, Cerys, suffered severe hypoxic brain injury during birth as a result of medical error, rendering her quadriplegic. Ruth described her experience and, in particular, the poor communication skills of the consultant obstetrician who ascribed the complication to her ‘baggy old uterus’ rather than anything that could be attributed to the care delivered. The paediatric neurologist was more honest and compassionate when he confirmed that there had been serious deficiencies in the obstetric care. In the final analysis Ruth felt compelled to sue the NHS Trust to ensure that the costs of lifelong care for Cerys could be met, a painful process in all respects. Ruth described the challenges of caring for Cerys ensuring she has a fulfilled life and the impact on her loving and supportive family and articulated how, despite extreme difficulties Cerys continues to inspire all those come into contact with her.

Dr Rob Hendry, Medical Director of the Medical Protection Society (MPS), then gave a sobering talk about the spiralling costs of medical litigation – the NHS is now calculated to have a staggering £71 billion in future liabilities, paying out £2.2 billion last year, an increase of almost 30% compared with the previous year. The explanation for this dramatic increase in the number and value of claims included rising public expectation, longer life expectancy and an enhanced awareness of how to access legal advice to make a claim. Poor communication following complications and unexpected outcomes is a common trigger for seeking legal redress.

Mr Giles Eyre from 9 Gough Square, London – author of several books on Clinical Practice and the Law, and teaching clinicians how to write high quality Medico-Legal reports – discussed the implications of the recent case of Montgomery v Lanarkshire Healthboard in Scotland (2016). The ruling from this case requires clinicians to ensure that all risks that the patient considers to be material should be disclosed, and that there is an obligation to ensure patients understand the potential risks of any procedure for which their consent is, or has to be, sought. The latter is fully in line with existing GMC guidance, and Mr Eyre described how the criminal charge of gross negligence manslaughter (GNM) could be brought against a doctor whose practice was considered as ‘truly, exceptionally bad’ and whose actions could be construed as ‘giving rise to a serious and obvious risk of death’.

Dr Oliver Quick, an academic lawyer from the University of Bristol who recently published on the regulation of patient safety, emphasised that successful prosecution for GNM was in fact very unusual; on average only two cases per annum in England. However, around 35 doctors were subject to police investigation instigated via the Crown Prosecution Service (CPS), each year. Dr Quick suggested that a charge of GNM should be confined to doctors who are reckless, rather than those who make genuine mistakes while trying their best to help their patient.

Professor Alan Merry, Head of School of Medicine, University of Auckland, New Zealand – who has written several books and published widely on the subject of patient safety, errors in medicine and the Law – explained that medicine is acknowledged to be a very challenging discipline, with doctors capable of making mistakes like everyone else regardless of knowledge and expertise. He tellingly differentiated between ‘error’ (doing the wrong thing while trying to do the right thing), and ‘violation’ (intentionally doing the wrong thing); for example, by knowingly altering medical notes after an adverse event. While the former is common, the latter is rare and deserving of censure.

Dr Tom Clutton-Brock, Reader in Anaesthesia and Intensive Care at the University of Birmingham – with extensive expertise in systems analysis and the safety and regulation of medical devices – opined on safety issues relating to the 500,000 different medical devices currently in use in Europe. In the event of device failure he advised us to ‘keep calm and write it down’. The yellow card reporting system, originally for reporting adverse drug reactions, has been extended to include devices and is proving helpful in identifying device failures that are unusual and can be fatal.

Dr David Nicholl, Clinical Lead for Neurology at the City Hospital Birmingham, emphasised that whistle-blowers in the NHS were still not free to speak openly without fear of censure. He clearly distinguished between whistle-blowers that attempt to raise patient safety issues or identify when organisations fail to take action to address safety concerns, such as Dr Raj Mattu in Coventry; and those who have born the brunt of organisational failures such as Dr Hadiza Bawa-Garba, who had essentially ‘taken the rap for an understaffed hospital’. Dr Nicholl concluded that the controversy surrounding the use of Dr Bawa-Garba’s reflective practice notes during the litigation and disciplinary process, and the decision of the GMC to appeal against the decision of the Medical Practitioners Tribunal Service, had united many members of the medical profession in their opposition to the GMC.

Professor Sir Norman Williams, senior clinical advisor to the Secretary of State for Health and Social Care, and Former President of the Royal College of Surgeons, presented the conclusions and recommendations of his recent Rapid Policy Review – relating to gross negligence manslaughter in healthcare, as commissioned by the Secretary of State and published in June 2018. The panel he chaired agreed that the fear of prosecution inhibits openness among medical practitioners (and with patients) when things go wrong, and thus has a negative impact on patient safety as lessons will not be learnt. He maintained that in relation to the criminal law ‘the bar was appropriately high’ and consequently there were very few prosecutions for GNM of ‘truly exceptionally bad’ healthcare professionals. However, as there were approximately 30 investigations a year with an average of one prosecution this caused great anxiety for those involved for a relatively low ‘success’ rate. The evidence suggested that this situation resulted from inconsistency in the investigation and prosecution of any given clinician who had made an error resulting in an unexpected death. Professor Sir Norman Williams informed us that the former Secretary of State for Health, Jeremy Hunt, had emphasised that the wider healthcare and legal system should ‘support to learn rather than seek to blame’. He was pleased to inform us that all the recommendations had been accepted in full by the government and that these were being implemented.

Mrs Lucy Watson, Chair of the Patients Association, described the concerns raised for patients in the findings of enquiries such as those in mid-Staffordshire and Morecombe Bay, which undermined public trust in the NHS. She indicated that many patients who complained were ‘not believed, not apologised to, and felt that there was little attempt to learn and improve the system’. Too often patients’ experience is that the NHS is not person-centred or open in how it listens to, and investigates their concerns. Lucy advocated a ‘get it right at the start’ approach in response to criticisms about patient care, with early and respectful engagement with patients and families when things had not gone as planned. Leadership and accountability at Board level needs to be more visible for patients, so that when things go wrong patients know who is accountable and will be responsible for ensuring learning is used to make changes

Professor Justin Vale, Medical Director, King Edward VII’ Hospital, emphasised the need for professionalism among clinicians and the need for them to engage in genuine reflective practice, especially during the appraisal process, which he felt could be useful. He advocated the value of the development of a just culture, policies for duty of candour, effective ‘root cause analysis’, incident investigation of serious incidents and ‘never events’, as well as the WHO’s ‘5 steps to safer surgery’ checklist, which should be scrupulously performed with all members of the theatre team for every patient.

Dr Karen Henderson, Assistant Coroner, South East England, London Coroners Group and Consultant Anaesthetist, informed us about the Coroner’s Inquest. She stated that the coronial system was an inquisitorial rather than an adversarial process, but one that currently lacked sufficient resources to contribute effectively to improving patient safety. Dr Henderson also described that the short form conclusion of ‘neglect’ could be defined as the gross failure to provide basic medical attention as the cause of death. She indicated that the Coroner has no power to enforce prevention of future death (PFDs) notices, and that there was limited systematic sharing of PFDs across the country. She finished by saying that the planned introduction of Medical Examiners in England from April 2019 was ‘rather disorganised’.

Mr Ian Barker, Senior Criminal Defence Solicitor from the Medical Defence Union, rather alarmed the audience by describing a scenario in which a doctor who had made a fatal medical error might be arrested, cautioned and questioned by experienced detectives from a murder investigation in a police station. His advice in such situations was to seek early legal advice, particularly for an interview, be cooperative and consider providing the police with a carefully prepared medical report setting out the facts in relation to the exact situation, and circumstances in which the error occurred.

Dr Rick Porter, consultant in O&G, and a Governor of the Expert Witness Institute, suggested that the incidence of healthcare litigation was rising so fast that soon ‘every doctor would be writing a medical report on every other doctor!’. Appearing in the witness-box as an expert can be a stressful experience, but he admitted that there was an unfortunate variability in the quality of some of the expert advice provided. Discussion of an expert witness training and credentialing system is ongoing, but would be challenging to manage and monitor.

Mr Bertie Leigh QC, Consultant Chairman of the National Confidential Enquiry into Patient Outcome and Death, then proffered his definitive view that juries were always likely to find it difficult to decide whether a doctor who made an error leading to death in a complex medical case was simply negligent, and therefore liable to civil litigation, or criminally negligent, and consequently at risk of receiving a prison sentence. He argued that a change in the law was required to clarify the situation.

The last talk of the day was given by the honorary consultant general surgeon, David Sellu, who was convicted of GNM following the death of a patient from peritonitis as a result of perforated diverticular disease. His conviction was subsequently overturned by the Court of Appeal, on the grounds that the judge had directed the jury incorrectly. David described the trauma of the prosecution, the trial by the media and his imprisonment in Belmarsh high security prison. After all these tribulations he was subject to a further GMC enquiry, which found his fitness to practice was not impaired. He noted that despite failings at the hospital, including failure to disclose an RCA of the event, he has never received an apology. His presentation was followed by prolonged applause from the audience.

The end of the day saw a second in-depth and thought provoking panel discussion when many of these issues, including rota gaps, whistle-blowing, reflective practice and the appropriateness of GNM prosecutions of clinicians, were discussed with all experts present. There seemed to be some consensus around Bertie Leigh’s suggestion that a jury would always find it almost impossible to decide between GNM and straightforward negligence in complex medical cases with associated system errors in an overstretched health service. However, it was conceded that in the midst of the current toxic Brexit negotiations this was not an issue that our parliamentarians were likely to have any time or inclination to turn their attention to. Instead, ways and means should be found to discourage the CPS and police from initiating prosecutions against doctors for GNM, except in rare instances of a death resulting from obvious reprehensible medical recklessness. The Duty of Candour and early open discussions when things have gone wrong, along with careful investigation and clearly written reports, may go a long way to reduce the need for patients and their families to seek the legal route to find out what happened and why. Positively, all lecturers and session chairs reaffirmed their commitment to work further on the issues brought forward during the day to constructively contribute to better resolution.

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