The reality

It is widely acknowledged that NHS systems are facing unprecedented pressure. Doctors will be only too aware that unsafe systems of work have the potential to harm patients, as well as to disrupt or even destroy their careers.

A significant number of doctors face criminal investigations each year following the death of a patient. As cited in the review linked below, only 6% of these investigations result in the doctor being charged with gross negligence manslaughter and successful prosecutions are, thankfully, rare. Nonetheless, doctors have a very real fear of the prospect of multiple investigations following an unexpected death, which might include scrutiny by their employer, the coroner, the GMC and the police.

Leslie Hamilton is a former cardiac surgeon who chaired the GMC-commissioned Independent review of gross negligence manslaughter and culpable homicide in medical practice. In its foreword, he acknowledged that Dr Bawa Garba's case had spread 'toxic fear' through the profession and had led to a loss of self confidence among doctors. The report anonymously quoted a doctor who had responded to the review's call for evidence as articulating the fears of many:

'I fear making an error every day. I spend much of my time second-guessing and worrying about my clinical decisions. I have nightmares about inadvertently causing patients harm. Often there are too many patients for one person to deal with and things get missed.'

This reflects the awful reality that doctors often face of either working in a system they know to be unsafe or refusing to work, potentially compounding the patient safety concerns and risking personal repercussions, such as regulatory body action.

While a refusal to work might release the individual doctor, it will simply transfer the risk to another doctor - either one who chooses to continue working, or one or more in another unit that is forced to take on additional patients when refusals to work lead a unit to close to admissions.

The MDU regularly receives calls from doctors seeking advice about what they should do when faced with working in less than ideal circumstances. It is understandable that doctors want certainty about their ethical and legal position, but our advice is tailored to the context and precise circumstances the doctor is in at the given time. A general legal opinion is unlikely to provide a one-size-fits-all solution, but here are some points to consider.

Practical tips

A number of authorities have provided guidance on what doctors should do when working in systems under pressure. The GMC's guidance Raising and acting on concerns about patient safety is particularly relevant and its key points are echoed in a more recent comment from the GMC's chief executive.

Most guidance focuses upon trying to manage as best as possible given the circumstances, while also taking steps to raise concerns about things that may put patients at risk. All doctors, whatever their role, are expected to raise and act on concerns regarding patient safety.

Your specific route to raising concerns and the urgency with which you follow it will depend upon the precise circumstances you are facing, but the MDU suggests the following general steps when facing patient safety concerns.

Identify the particular concern or risk

Be specific about the detail, and try to outline the potential adverse outcomes if your concern materialises. Provide objective evidence/examples where possible.

Find out whether others share your concerns

Discuss your concerns with colleagues - do they share them? Discussing a concern can help to establish the severity of the risk and a concern shared and raised jointly may have more impact.

Escalate your concerns to the appropriate individual

Your workplace should have a policy on raising concerns. Make sure you raise your concerns with the appropriate person, who should be someone in a position of authority with the power to influence change.

The most suitable person will depend upon the nature of your concerns. For example, letting a consultant know that a colleague has not attended for work will allow the consultant to liaise with the duty manager to try to find a replacement. Similarly, your employer may require IT systems failures to be managed by the relevant department, but it's prudent to ensure the duty manager understands the impact it is having on your ability to care for patients, so contingency plans can be put in place. Be sure to make a record of the failing and its impact.

For less acute and more general concerns your medical director or educational supervisor might be most appropriate contacts in the first instance. You could approach your local freedom to speak up guardian if you're not able to follow your normal line management chain.

Suggest possible solutions, where appropriate

Consider what has been tried before. Have you encountered similar difficulties in other organisations and seen effective solutions implemented? Think about the outcome you want to achieve.

Document your concerns and the steps you have taken to escalate them

Having concerns on record is helpful as there may be an investigation and, should things go wrong despite your best attempts, you may need to explain your actions and the context in which they occurred.

Consider whether you need to involve external agencies

You should usually first raise your concerns within your organisation. If you're unable to do this or if you feel that action hasn't been taken as a result of your concerns, approach your medical defence organisation for further advice. The BMA and/or your Royal College may also be able to provide guidance, and the GMC has a confidential helpline.

The GMC advises that you should contact a regulatory body (such as the GMC) if:

• if you have raised your concern through local channels but are not satisfied that the responsible person or body has taken adequate action
• you can't raise the issue with the responsible person or body locally because you believe them to be part of the problem
• if there is an immediate serious risk to patients, and a regulator or other external body has responsibility to act or intervene.

Don't give up

Sometimes it takes time to highlight a problem and effect change. Assuming the risk isn't imminent, taking time to put forward a persuasive case can be helpful.

Understandably, some doctors are sceptical as to what impact raising concerns can have, and doctors in a management role might also wonder what they can do in the face of difficulties in recruiting appropriate staff and rota gaps.

Fundamental staffing or resource problems might take time to overcome, but there have been some circumstances in which action as part of doctors in training has resulted in positive action.

While many doctors know and take these steps when they have concerns, it cannot remove the fear that should something go wrong, they may be held to account through procedures that often struggle to recognise the impact of systems failures. If you find yourself in this position, don't forget the MDU has a 24-hour freephone advisory line and we can discuss your concerns with you at any time.

The legal position

As the only medical defence organisation with an in-house team specialising in medical crime, we are uniquely placed to understand the pressures and concerns described above. MDU senior solicitor Ian Barker, who has assisted MDU members with over 100 police investigations following the death of a patient, made the following comments.

'Resources and system errors clearly can be taken into account in assessing the individual responsibility a clinician might face in relation to an investigation or prosecution of gross negligence manslaughter.

In the Court of Appeal case of Drs Prentice and Sullman, the court made plain that there were many excuses and mitigating circumstances - including, for example, the lack of a senior nurse present at the procedure, with two student nurses being present.

In the subsequent House of Lords case of Dr Adomako, the Lord Chancellor said that, 'the essence of the matter…is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount…to a criminal act or omission'. All the circumstances could include resources or the lack of them, and the significant pressures on a clinician arising from considerable workload and a lack of resource.'

Hope for the future?

The recent Williams' Review reflected this position, stating:

'9.18. In every case of suspected gross negligence manslaughter involving a healthcare professional, there will nearly always be factors in the delivery of healthcare beyond the actions of individual professionals. An effective local investigation, operating in conjunction with a police investigation, is essential to establish a full understanding of all the causal factors. This provides an understanding of the broader and system context in which the actions of an individual took place.

9.19. This is not about healthcare professionals avoiding accountability for their actions, including those that may constitute gross negligence manslaughter, but it is important to understand the actions of individuals in the context in which they were operating. In relation to gross negligence manslaughter, Lord Mackay set out that whether the breach of a duty of care should be characterised as gross negligence, and therefore as a crime, 'will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred'.

The later Hamilton report also recommended that when doctors were investigated for gross negligence manslaughter, the appropriate external authority should scrutinise the systems within the department where the individual worked.

The MDU welcomed these recommendations. We know that improvements in patient safety are most likely to come through local investigations into patient safety incidents that focus on learning rather than on blame.