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Don’t prosecute doctors who unwittingly make fatal errors, say medical leaders

Cultivate ‘just’ rather than ‘blame’ culture, emphasise submissions to Marx review on gross negligence manslaughter and culpable homicide

Caroline White

Monday, 30 July 2018

Doctors who unwittingly make fatal errors shouldn’t be prosecuted, says the Royal College of Physicians in evidence submitted to the GMC working group on gross negligence manslaughter and culpable homicide, chaired by Dame Clare Marx.

The focus should be on cultivating a “just” rather than a “blame” culture, it suggests.

“The latter is a barrier to improving quality and safety in healthcare, whereas the former actively fosters improvement by encouraging openness and learning,” it says.

Several RCP members with particular expertise and experience in this area intend to make comprehensive responses to the Marx review. And the College responded to the recent rapid policy review into gross negligence manslaughter by Professor Sir Norman Williams.

In this submission, the College says that doctors shouldn’t be prosecuted for deaths that result from errors: involuntary mistakes; slips; and lapses. The focus should be on learning from errors to improve patient safety, rather than apportioning blame, it says.

The context in which a patient died is of paramount importance, particularly the system and environment in which a healthcare professional was working, it insists.

The College calls for a human factors assessment approach to be taken in investigations, and for greater standardisation of expert witness training and selection; investigation; and the processes for the decision to prosecute.

The College also welcomes the fact the GMC is investigating the high level of complaints against black and minority ethnic doctors compared with white doctors.

“The fact that none of the healthcare professionals convicted of gross negligence manslaughter in the past 10 years has been white, when around 60 per cent of the NHS medical staff is white, suggests a significant level of bias,” it points out.

The doctors’ defence body, the Medical Defence Union, takes a similar stance in its submission to the Marx review.

“Unexpected deaths should be investigated in a fair and transparent way and the NHS should seek initially to learn lessons, rather than to apportion blame. That isn’t to say that doctors shouldn’t be held accountable, but there are separate procedures, such as a GMC or disciplinary investigation, where such decisions can, and should, be made,” commented Dr Oliver Lord, MDU medico-legal adviser.

But the MDU also wants doctors who are investigated following a patient’s unexpected death to be much better supported by their trust or primary care organisation.

There needs to be more consistency and fairness in the way trusts respond to unexpected deaths and the investigations that follow, it says. This in turn could prevent unnecessary referrals of doctors to the police and investigations for gross negligence manslaughter, it suggests.

“It is right that organisations should focus on those left behind after a close relative or friend has died. But trusts also need to recognise and deal supportively with staff involved as they are often extremely distressed and fearful when a patient’s death is unexpected,” said Dr Lord.

“In the MDU’s experience, some trusts and primary care organisations are supportive of doctors involved in unexpected deaths, either because there is a clear trust policy or because the doctors are fortunate to have a clinical director or colleagues who understand and are supportive. We see investigations that are undertaken with the sole aim of identifying what went wrong, why it went wrong and how to address any learning points.

“Unfortunately, this is not the norm and our members often report that they feel those in authority seem to close ranks and often thrust the doctor into the spotlight unaided.”

Arrangements for reporting and investigating serious incidents could be improved if each organisation had to publicise and stick to its process, the MDU says. It is also important for trusts and primary care organisations to set minimum levels of resource, knowledge, skills and experience for investigation teams, it suggests.

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