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Review published to protect doctors over medical errors

GMC describes outcome as ‘missed opportunity’

Jo Carlowe

Monday, 11 June 2018

New measures are to be brought in to protect doctors from negligence charges where errors are made, following the Bawa-Garba case.

Health secretary Jeremy Hunt today announced a number of patient safety measures and recommendations following the publication of Professor Sir Norman Williams’ review on gross negligence manslaughter in healthcare.

The review makes recommendations to support “a more just and learning culture in the healthcare system”.

As a result of the review, healthcare professionals will see the following changes:

  • Revised guidance to investigatory and prosecutorial bodies and a clearer understanding of the bar for gross negligence manslaughter in law should lead to criminal investigations focused on those rare cases where an individual’s performance is so “truly exceptionally bad” that it requires a criminal sanction,
  • Systemic issues and human factors will be considered alongside the individual actions of healthcare professionals where errors are made that lead to a death, ensuring that the context of an incident is explored, understood and taken into account.
Responding to the health secretary’s announcement, Dr Chaand Nagpaul, the British Medical Association’s council chair, said: “If we, as doctors, and the wider health service are to learn from these mistakes and to prevent such tragedies occurring, the NHS needs a dramatic shift away from the current culture of blame. Addressing these errors needs to consider the system as a whole, rather than targeting individual doctors, who are often doing their best in the most difficult situations, in an NHS which is under pressure without adequate staff, beds and facilities.”

Dr Nagpaul added: “Doctors must feel able to report errors and reflect on their own mistakes openly, without the fear of these reflections being used against them at a later stage. Only then can true improvements to patient safety be made. While the assurance that regulators will no longer be able to request reflective material during their investigations is a welcome step, we still believe they should be given full legal protection, which would foster an open environment to apply systemic analysis to adverse events to improve patient safety.

“The BMA has long-opposed the right of the General Medical Council (GMC) to appeal fitness-to-practise decisions. We know that doctors going through this process find it stressful enough, in many cases leading to anxiety and depression, without the added worry that any decisions made by the Medical Practitioners Tribunal Service (MPTS) can be overridden by the GMC taking the case to a higher court. Therefore, we are glad that to hear the secretary of state announce that the regulator will no longer have this right. Removing this right brings arrangements for doctors in line with that of other healthcare professionals, where this responsibility rests with the Professional Standards Authority.”

He added: “In our evidence to this review, we raised several concerns about the growing number of doctors being investigated for gross negligence manslaughter, and the inappropriate criminalisation of medical error, especially in the context of wider systemic factors. We will therefore be monitoring closely how – as recommended by Sir Norman – prosecutors review where the bar is set for pursuing criminal cases.

“We welcome the sentiment that there must be a more consistent approach regarding prosecution for gross negligence manslaughter. While we wait to see the impact the roll-out of the medical examiner role, we still believe that the chief coroner should be consulted before any death is referred to the police for a gross negligence manslaughter investigation, and that a more robust, national approach must be adopted to minimise regional variations.”

The GMC today described the Williams' review as a "missed opportunity", due to the failure to recommend giving doctors’ reflections legal protection in the criminal court.

Professor Sir Terence Stephenson, chair of the GMC, said: “We are disappointed by the review’s recommendations. We wholeheartedly support the secretary of state’s desire to create a learning culture. The best way to achieve that is to legally protect doctors’ reflective notes. We are concerned that, in accepting these recommendations, the government is missing an opportunity to protect all doctors by not going ahead with a recommendation to enact this legal protection.

“We are also surprised that the review has focused on the GMC’s right of appeal given the case remains before the courts. If the recommendation to remove this is pursued, it will significantly reduce our ability to protect patients.

“Our appeals have been upheld in 16 out of 18 cases heard by the courts. We believe our actions have provided greater public safety and maintained public confidence in the profession through these rulings, all but one of which involved sexual misconduct or dishonesty. We believe that a culture of learning applies to the GMC as much as to doctors, and we will reflect on the review’s observations.”

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