Gross negligence manslaughter in healthcare—the report of a rapid policy review by Professor Sir Norman Williams has been published by the Department of Health and Social Care (DHSC).
The policy review was set up to examine how decisions are made in the current legal framework. It assesses three key areas of interest:
- the process for investigating gross negligence manslaughter
- reflective practice of healthcare professionals
- the regulation of healthcare professionals.
The Williams review recommends that clarification on what constitutes gross negligence manslaughter should be encouraged; it is hoped that revised guidance to investigatory and prosecutorial bodies could lead to criminal investigations focused on the rare cases where an individual’s performance is ‘so “truly exceptionally bad” that it requires a criminal sanction.’
One of the key concerns for healthcare professionals is that reflective notes, intended to support professional development and learning, could be used against them in fitness to practice cases or under prosecution (such as for gross negligence manslaughter).
The General Medical Council (GMC) has already pledged that it will not use reflective materials in fitness to practice cases; however, there is currently no legal protection for doctors’ reflective notes.
The Crown Prosecution Service advised that reflective material is unlikely to be used in the prosecution of a healthcare professional, but that it is possible. The suggestion that reflective materials should be given legal privelege to prevent their use in court—a stance supported by the GMC and the BMA—was not recommended by the review as ‘no other sectors or professions have equivalent privilege’ and suggested that an exemption could ‘cause concern that healthcare professionals are above the law.’
Responding to the review’s recommendations, Professor Sir Terence Stephenson, Chair of the GMC, said: ‘We are disappointed by the Review’s recommendations … 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.’
Dr Chaand Nagpaul, BMA council chair, said: ‘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’.
Fitness to practice cases and the GMC’s right of appeal also came under the scrutiny of the review; the report suggests that removing the right of the GMC to appeal against decisions made by the Medical Practitioners Tribunal Service (MPTS) would help address the ‘level of fear and mistrust that the medical community reported about the GMC’ and cultivate a more open culture for delivering improved patient safety.
The review noted that the Professional Standards Authority has a near‑identical right of appeal, and can fulfill the same role of appealing MPTS decisions that it believes are insufficient to protect the public.