If a patient dies following errors in their care it is tragic for all concerned, but the tragedy is compounded when the opportunity to learn lessons is overtaken by a rush to find someone to blame.
The ultimate expression of this is the use of the criminal offence of gross negligence manslaughter (GNM) to investigate and sometimes prosecute healthcare professionals. It is a process that is designed to determine an individual's guilt or otherwise rather than analysing all the contributory factors which led to a patient's death. But despite these obvious limitations, too many doctors in England are investigated and prosecuted for GNM, and the MDU has assisted 34 members with such investigations since 2014.
Sadly, front-line doctors are particularly vulnerable, even when they are trying to do their best for patients in often difficult circumstances. Although they are rarely in a position to control a toxic working environment, clinicians may still be held wholly responsible for failures in patient care.
This inconsistency was brought into sharp focus by the recent case of Dr Hadiza Bawa-Garba. We recognise the demoralising effect that such cases have on the profession and have been advocating fundamental change in this area of law for some time. We therefore welcomed the government's decision to hold a rapid review of the application of gross negligence manslaughter in healthcare, which would examine 'how we ensure there is clarity about where the line is drawn between gross negligence manslaughter and ordinary human error in medical practice.'
Our submission to Professor Sir Norman Williams reflects our view that the incidence of investigation and prosecution of clinicians is much too high, when it should be reserved for only the most egregious cases. As of 2015, it was understood that fewer than one in ten police investigations relating to healthcare professionals led to a prosecution. Of those that do, the conviction rate is only around a third of cases, in contrast to the Crown Prosecution Service's overall GNM success rate of just below 80% of cases.
These needless manslaughter investigations cause significant distress to those doctors concerned, and their ordeal is aggravated by the excessive time it takes to reach a decision on prosecution. The MDU's solicitors specialising in criminal investigations arising from clinical practice routinely advise that a case will last about a year, but it can be as long as three years before a decision is made. Added to this is the likelihood that the GMC will take action on doctors' registration to maintain public confidence and the real possibility that they may be forced to undergo trial by media.
Lengthy police investigations carry resource implications and also have difficult consequences for the families of deceased patients who may have to wait for years before they can find out what happened.
To improve the GNM investigation and decision-making process, the MDU proposes a number of straightforward remedies that we believe can be implemented without the need for legislation.
First, there must be greater support for coroners who are currently responsible for passing most cases to the police for investigation. A more robust referral process, involving the chief coroner, and clearer guidance about the current law on GNM would help to achieve greater consistency and clarity.
…the incidence of investigation and prosecution of clinicians is much too high, when it should be reserved for only the most egregious cases.
Second, delays in the investigation of complex GNM cases could be mitigated by the formation of a national police unit or regional specialist units to investigate GNM allegations which could develop expertise in complex medical cases. Again, there needs to be clearer guidance on current law, as well as input from properly instructed experts (medical and non-medical) to help the police establish if cases will meet the threshold for GNM.
And there should be training for those involved in the prosecution process to help them assess whether there is real criminal culpability by a doctor, as well as understanding other factors at work such as poorly functioning systems.
But while swift and decisive action is needed to address failings in the way that GNM is investigated and prosecuted, the best way to achieve a safer environment for patients lies in promoting a culture of fairness, transparency and learning from mistakes. To this end, we have also recommended that NHS Improvement reviews its guidance on dealing with and learning from sudden unexpected deaths to emphasise the importance of treating clinical staff supportively and avoiding any early apportionment of blame. Doctors should be accountable but not without fair process.
As you would expect, the MDU's contribution to the review draws on our detailed knowledge and understanding of the law surrounding GNM and its practical effect on doctors. As the only medical defence organisation with an in-house legal team dedicated to assisting members with criminal investigations arising from their clinical practice, we are in a unique position to suggest workable solutions thanks to the team's collective expertise and more than 70 years' combined experience.
It is largely thanks to their specialist and tenacious representation that MDU has a strong track record in defending members who are unfortunate enough to be the subject of a police investigation, which should offer some reassurance to members who find themselves under investigation following the death of a patient.
On behalf of our members, the MDU is ready and able to make a positive stand on this issue which has understandably become so emotive for the profession.