Commentary

The Williams Review on Gross Negligence Manslaughter

The Williams Review was set up on foot of the controversy surrounding the conviction of Dr. Bawa Garba for gross negligence manslaughter and her subsequent erasure by the GMC.  The purpose of the Review was primarily to determine the boundary between gross negligence manslaughter and negligence.  Another consideration was how best to preserve the culture of reflective learning. 

In general manslaughter charges are brought against doctors rather than corporate bodies such as hospitals.  Traditionally, it has been thought that manslaughter could only be caused by an individual and not a corporate body. 

The events surrounding the Garba case caused great disquiet among doctors across the UK and Ireland.  She was a Paediatric trainee when the event took place in 2011.  The charges brought against her related to her management of a child who subsequently died from septicaemia.  There was great concern among the medical profession when it was discovered that Barba’s reflective trainee’s logbook was submitted by the prosecution as evidence to the court proceedings.

The case brought home to doctors that any clinician could be liable to a criminal conviction in the course of their day-to-day work.

The impact of this message has had a chilling effect.  The practice of medicine has been changed.  The UK Government and the GMC belatedly recognized the serious impact that the events have had on morale and recruitment. Mortensen2 has recently written that navigating the interface between healthcare and the law has become part of modern medical practice.  Among professionals there is little understanding of what actions might lead to the public losing confidence in the profession.  It should be made more clear how the impact on public confidence is assessed on reaching fitness to practice decisions within the GMC.

In the UK since 2013 there have been 151 cases for gross negligence manslaughter, 7 were prosecuted and 3 were acquitted.  Most cases dragged on for at least 3 years before being concluded.  While the Review states that the risk to the individual practicing doctor small, it fails to appreciate the personal and far-reaching distress that such a case brings to the defendant, his family, and his/her wide circle of colleagues.  There is a genuine fear among professionals that they are at risk of prosecution for what is a genuine error.

There is an appreciation in the Review that there is a somewhat random nature about the cases of negligence manslaughter.  The criteria appear vague.  There is a sense of arbitrariness about which cases are criminally prosecuted.  The law cannot be left to simply take its course.  Otherwise some doctors will drift out of high- risk specialties or clinical practice altogether.

The Review recommends that a working group including the prosecution service, the coroner, and the medical defence organisations should draw up a clear statement on the law in relation to negligence manslaughter. If this is not clarified any doctor who makes a mistake, while genuinely doing his best, is in a vulnerable place.

The Review has taken on board the concerns expressed by the defence organisations regarding the quality of the expert witnesses used by the prosecution services.  Some have insufficient understanding of healthcare practice, have retired, or have not worked in a medical area closely related to the case.  The opinion provided may be based mostly on a textbook opinion which fails to recognize the realities of frontline clinical practice.  There are important differences between work as imagined and work as done. The impact of the intensity of the work that the doctor does with tight guidelines and relentless pace in areas such as ED must be better appreciated.  Intensity is defined as the level of effort supplied per unit of working time.

There are no professional standards or training for the role of being an expert witness.  There is no guarantee that they have an understanding of their legal responsibilities to the court.  There needs to be greater consistency and higher standards among expert witnesses.

The Review states that the prosecution services must not engage in expert shopping when the first expert does not support a prosecution.  A further measure would be to insist that all the expert evidence that was sought, be it positive or negative, must be disclosed to the court.

In the recent Gawa case one of the most controversial issues was the acquisition of the trainee’s reflective logbook notes by the prosecution.  Although it is debated whether it was ultimately used, it caused great concern that it had been viewed.  All the professional and representative groups across the UK expressed alarm that for the first time written reflection could be used against a doctor in a criminal or a regulatory proceeding.  The new fear about the use of reflective practice is present and real.  The Review states that it was concerned to learn that some clinicians are choosing not to engage with reflective learning for fear that it could be used against them.  The prosecution services state that while it is unlikely, it is possible that this may occur again.  Where any evidence is material to a case it can be used.  Any reflective note that is self-incriminatory is a risk for the clinician.  This aspect of the Review provides no reassurance to doctors. 

The existing guidance on reflective practice will need to be reviewed.  The Review is unclear about how this can be achieved.  It will be a major challenge to maintain the value of reflective learning while at the same time ensuring that the material does not in any way incriminate the health professional.

The Review was informed that Black, Asian, and Minority Ethnic doctors are over-represented in criminal and fitness to practice cases.  The GMC accepts that the rates are higher but it stated that there is no evidence of discrimination.  However, concerns about unconscious bias remain.  There should be more emphasis on equality and diversity standards when choosing members of GMC panels.

Another issue is the availability of legal representation.  In 2016/17 only 54% of doctors before the GMC were legally represented.  There are real concerns that those who are not legally represented may be at a disadvantage in what is an adversarial process.  Without representation it is more difficult for a defending doctor to challenge the inconsistencies in the quality of an expert’s evidence.  The Review was unable to ascertain whether there was a correlation between legal representation and the ethnicity of the doctor.  In other words are ethnic minority doctors more likely not to have a solicitor. Legal representation is expensive.  Many doctors especially trainees are not fully aware that the State clinical indemnity schemes does not cover Medical Council cases.  Separate cover must be taken out with one of the defence organisations at one’s own expense.

The Williams Review on negligence manslaughter is to be welcomed as a first attempt to tackle a very serious, worrying and emerging issue for doctors.  While its tone is sympathetic, many practicing clinicians will not find it reassuring.  It appears to play down that there have been 151 cases of negligence cases in a 4 years period.  In reality this is a significant number when one considers the rarity of corporate manslaughter within the NHS. After reading the Review, one is still uncertain where the distinction between negligence manslaughter and negligence lies.  This must be clarified. The findings are not reassuring on the issue of reflective practice.  If a doctor documents situations where things could have been done better, the records can become part of the prosecution evidence against him at a future date. The over-representation of ethnic minority doctors in cases is accepted in the Review but no explanation is provided.  Furthermore no remedial measures are offered to counteract the discrepancy. Almost half of the doctors appearing before the GMC do not have any legal representation.  This creates a lacks of balance in that the defending doctor is facing a well-briefed, legal team on the other side. The Review is more robust in relation to expert witnesses.  It recommends wide ranging changes including the training of experts.

In summary the issues for the profession raised by the Gawa case are far from being resolved.

JFA Murphy
Editor

References

1. Department of Health and Social Care. Williams review into gross negligence manslaughter. 2018 www.gov.uk/government/publications/williams-review-into gross-negligence-manslaughter-in-healthcare.
2. Mortensen N. Williams review of gross negligence manslaughter in healthcare. BMJ 2018;361:k2779 (27 June 2018)

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