Independent Review of Gross Negligence Manslaughter (GNM) and Culpable Homicide

You would be forgiven for perhaps not having read this during your summer holidays!

However it makes a worthwhile read firstly, given the furore following the case of Dr Bawa Garba and secondly, because of the wider points the report makes about investigations and coroners.

Executive Summary

The report notes that there has been much discussion about the importance of a just and fair culture in medicine and the need to learn, not blame when things go wrong.  This report is about how to achieve that aim, for the benefit of both patients and the doctors who care for them.  The report’s focus was on how the systems, procedures and processes surrounding the criminal law and medical regulation are applied in practice and how they can be improved to support a more just and fair culture.

They note that the decisions of a regulator when things go wrong are only the final stage of a complex series of processes which begin with the healthcare provider and which may stretch over many  years.

Whilst there are robust frameworks to enable good quality, fair and just investigation of incidents the reports notes that those are inconsistently applied, poorly understood and inadequately resourced.   It also comments on the lack of consistency in the processes of the coroner service.   They remark that the Chief Coroner and his deputies have a role in supporting greater consistency of decision making.   They also recommend that doctors appearing at coroner’s courts be given better support.  They specifically state that healthcare service providers have a responsibility to provide support and guidance for doctors involved.

Key points within report

  • A blame culture does not encourage candour when things have gone wrong and is inimical to learning
  • Only 10 doctors were prosecuted between 2007 and 2018 out of 192 cases involving healthcare professionals where there had been CPS involvement.  However prosecutions / convictions represent the end of a long process of investigation in a variety of settings
  • The overall number of police investigations relating to clinical care provided by doctors is unknown
  • In preparing the report they heard frequent references to “trial by media”
  • Both Bishop James Jones and Professor Sir Ian Kennedy are quoted
  • They did not find any record of a healthcare service provider being successfully prosecuted for GNM but state that calling for more prosecutions is not the answer.  They do however seek an impetus for corporate accountability and learning and make the point of saying that rejecting a blame culture should not mean a lack of accountability
  • They heard repeatedly that the quality of investigations carried out is inconsistent and often poor with damaging consequences for the staff involved.  Many doctors associate local investigations with the apportioning of individual blame rather than learning and prevention of future harm
  • Poor initial handling of incidents may make it more likely that a case will result in criminal investigation
  • Often the issues for families and staff are the same – exclusion from the process, lack of information or access to advice about their rights
  • Lack of training, time, dedicated professional resource and independence were all cited as issues with regard to investigations
  • They heard of coroners seeking “someone to blame” or following an “ inappropriately adversarial model”
  • Coroner’s Law Sheet no 1 on GNM was criticised for being out of date
  • Someone from the Trust should be at any inquest into the death of a patient which has been subject to an internal investigation
  • They noted Sir Robert Francis’ previous observation that in terms of police investigations there is a failure to understand all the circumstances in which doctors work

Recommendations

Some 29 recommendations are made at pages 73 - 77.  The ones of most interest might be:

3          Following an unexpected death there should be close adherence to the professional and statutory duty of candour to be open and honest with the family of the deceased. 

4          Involvement of, and support for, families and staff is often deficient in the period between the unexpected death and the start of a patient safety investigation.  All health service providers should have clear policies and a named lead to ensure consistent implementation of policies in line with the relevant national frameworks.

12         Doctors should only provide expert opinion to the coroner, police, CPS, GMC or to the criminal court on matters which occurred while they were in active and relevant clinical practice.

15         The investigation team need to have the time and appropriate experience, skills and competence (including understanding human factors) to undertake investigations and the necessary degree of externality to command confidence in the process.

16         There should be quality assurance of the effective application of local investigation frameworks.

17         In order to ensure a consistent approach, if a coroner feels that a doctor’s conduct might reach the threshold for GNM, they should discuss this with the Chief Coroner’s Office before the police are notified.

20         The CPS should consider what measures it could take to enhance the transparency and understanding of its decision making.

Our team regularly support clients in respect of both investigations and inquests (even undertaking investigations ourselves).  Please do not hesitate to get in touch.

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