Submission to Clare Marx Review on gross negligent manslaughter

May 2018

 

Dear Dame Clare,

Gross negligence manslaughter review

I am delighted that you have agreed to lead the inquiry into gross negligence manslaughter (GNM) and medical professionals. As you have said, there is a critical need to think through the implications and uncharted consequences.

I am a journalist and broadcaster, and am president of HealthWatch which promotes evidence-based medicine, a board member of Imperial College NHS Trust as well as of Sense About Science and the UK Stem Cell Foundation, a member of the RCP committee on ethical issues in medicine, of the RCS research steering group and the National Guardians’ advisory group, and an honorary fellow of the Royal College of Physicians. In addition, as an honorary fellow and visiting professor at UCL I am chairman of the advisory board of the Jill Dando Institute of Crime Science, and have experience of the impact of criminal law on crime rates.

Fundamentally, my recommendation boil down to the following:

DO recognise you have a once in a generation opportunity to change the law on GNM and the GMC itself.

DO NOT be put off considering law reform. GNM is misconceived. It should be necessary to prove mens rea, or intent to risk a patient’s death. Given that doctors treat people who are ill and routinely die, patient safety requires vigilance and candour. But accountability should mean learning from mistakes, not retribution. There is clear evidence that a punitive response in medicine does harm but no evidence that it improves patient safety.

DO acknowledge that the GMC processes are unnecessarily legalistic, archaically adversarial, unpardonably slow and cause considerable grief to doctors including the great majority who are eventually cleared.

I append a slightly more comprehensive summary at the end of my letter, but please bear with the narrative since, as your immediate reaction will have already testified, I am asking you to stretch your terms of reference. I therefore need to justify this approach.

In fact, despite your terms of reference – to improve how existing law, procedures and processes are applied (my italics) – Charlie Massey tells me there is nothing to prevent you questioning the law itself or from challenging fundamentals. It is essential the public is not denied a higher perspective which examines trade-offs and tests ethical assumptions that go to the heart of patient safety, and, given the tight constraints imposed on the Williams Review, I do hope that at very least you will look out over the walls before framing your recommendations to consider whether legislation should be changed.

No one is asking for doctors, or anyone else, to be above the law, but it is not seditious or subversive to question whether laws are right or not. Yesterday’s norms are superseded (with some, like the right to own slaves or criminalising homosexuality, becoming a cause of regret or revulsion) and so will many of today’s. It would reflect badly on society’s response to the Bawa-Garba crisis if all those charged to consider the matter dodged the issue of legislative reform. As Terence Stephenson has said, ‘it is everyone’s right to make representations’, and he has himself discussed with government the need for ‘a safe space in healthcare and a form of legal privilege akin to the airline industry’. Thus, I hope you and your colleagues will have the confidence to go to the heart of the matter.

I fear that if you do not explore this in the round you will have no options but to try patching a system which has already been patched many times. GNM is being applied more frequently, and the threat of prosecutions hangs like a shadow over the medical professions, leading in the cause of justice, to injustice, risk and harm.

Accordingly, I ask you to bear with me while I explain why, after much reflection, I am increasingly uneasy about society’s instinct to criminalise honest mistakes.

 

Why we should review the law

Gross negligence manslaughter distorts criminal justice priorities to the benefit of dangerous and recidivist criminals; it is illogical and unfair; it is subject to caprice; there is no evidence it reduces medical error; it is not necessary to ensure justice; it diverts NHS resources from patient care; it undermines a critical healthcare policy of promoting candour; and it almost certainly results in many invisible injuries and death because of risky and invasive overtreatment.

Distorting criminal justice

At first blush it might seem odd that a broadcaster best known for Crimewatch which sought to catch villains, should be opposed in principle to criminal prosecutions, but there is synergy. For a start, prosecuting people who have no intention to do harm diverts precious police and criminal justice resources from investigating those who do intend harm. This is no trivial matter, and nor should it be dismissed as not relevant to your inquiry. Bringing cases like Bawa-Garba’s to a level needed to satisfy the Crown Prosecution Service, and then through the courts, is resource intensive, and abstract skills and funds from a dwindling supply. Justice has a price. The Ministry of Justice faces unparalleled budget cuts, with equally unprecedented falls of almost 20 per cent in police numbers. Tens of thousands of serious offences are not even investigated.

You may even be able to quantify this trade-off by comparing the thousands of hours spent in criminal justice on a case like Bawa-Garba’s to that devoted, say, to recorded offences of violence against the person where 88% of cases go undetected[i].

The reality is that, in order to prosecute doctors who try to help, we allow to escape people who intend to injure. Some of their victims will require treatment from the NHS.

Illogical, unfair and capricious

What is more, GNM is in principle unjust. It is based on outcomes rather than actions, which means that the same action may be no offence or a very serious offence. Not to put too fine a point on it, it is arbitrary. By the same token, prosecuting doctors like Bawa-Garba dilutes the essence of real crime by which I mean badness as defined by mens rea, a wilful breach or an intention to do wrong.

This distinction is not arcane for an inquiry like yours into medical error and patient safety. Without the need to demonstrate evil intent, doctors are subject to fashion more than reason. As a notable law lord, Lord Atkin, observed some eighty years ago, in some periods, ‘expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter; but as manners softened and the law became more humane a narrower criterion appeared.’[ii] This was particularly so when manslaughter was a capital offence and, ‘men shrank from attaching the serious consequences of a conviction for felony to results produced by mere inadvertence.’

The GMC worries that we live in a retributive age and that it has no option but to keep in step with public opinion. True, opinion polls consistently suggest half the adult population is in favour of hanging and three-quarters believe we are soft on crime, but it was ever thus. In any case these surveys solicit answers offered in the abstract. Other evidence suggests, equally consistently, that citizens are far less punitive when presented with the facts about individual cases. The more we know, the less we rely on preconceptions and the more we tend to be nuanced. Just as clinicians expect informed consent from patients, citizens also deserve to be informed. Good public policy is not based on intuitive or presumed positions.

Whatever the reason, be it public pressure or systemic momentum, the use of GNM is on an upward trajectory. So far as I can establish there have been more prosecutions for medical manslaughter in the past 14 years than there were in the preceding 120, leaving doctors, as one lawyer observed, ‘in an almost uniquely vulnerable position regarding prosecution for making a mistake’[iii].

Not justified by evidence

Whatever is propelling these prosecutions, it is certainly not robust evidence that they do good. Evidence of efficacy is the first point where criminal manslaughter collides directly with the clinical culture. Doctors who are encouraged to practice evidence-based medicine might be surprised that the criminal justice system adduces no evidence at all that GNM as applied to the medical profession plays a role in reducing harm to patients. If GNM was proposed to a peer-reviewed journal as a broad-based evidence-based treatment it would be subject to ridicule.

One theoretical justification for punishing negligence is that, where individuals owe a duty of care to others, the threat of prison acts as a deterrent to making a mistake. But in many circumstances this is logically absurd since deterrence can only work where forethought is applied. In other words, there is a big difference between how manslaughter affects the way people plan activities and the way it affects them as they carry out their day to day routine.

Thus, the threat of prosecution may discourage a strategy of cutting corners to save money; it could influence a decision to snort cocaine or drink vodka before operating machinery; or it might persuade employers to tighten safety routines. But it cannot oblige someone not to make a mistake once committed to a course of action; it cannot help a driver or a pilot deal with information overload; it cannot prevent a busy doctor from overlooking something – for the simple reason that in the midst of routine activity people do not, and cannot, make a risk-reward calculation. For sanctions to work, any behaviours they seek to influence must be planned and wilful.

As it happens we have several real-world experiments which allows us to compare fault and no-fault approaches and to test whether fear of legal sanction drives desirable behaviours, or whether liberating people from jeopardy promotes irresponsibility. We can even measure outcomes in a clinical environment. The traditional UK response to medical culpability in civil proceedings is to go to court, where the critical issue is not the outcome of the error but whether or not the defendant was liable in law. This was considered unfair in New Zealand since if no fault is proven then the plaintiff is left to bear the burden. Understandably, without recourse to the courts, complainants in New Zealand have since used other channels to voice dissatisfaction. But New Zealand has seen no rise in underlying medical mishaps. This needs to be said with caution since adverse events are not reliably recorded anywhere (as patient safety concerns and shortcomings at Mid Staffs Foundation Trust so visibly exposed in the UK). But no one has detected, or even suggested, there has been an increase in clinical irresponsibility in NZ because doctors are no longer taken to court for damages[iv].

True, we are talking about civil, not criminal, law but there is no reason to believe the effects of criminal penalties would be much different from those of civil ones. The onus must be on those who claim otherwise to produce evidence to the contrary.

Obviously, this finding does not extend to cases where people plan their actions, as in a motorist arranging to travel to a party where she expects to drink alcohol, a construction company planning to appoint subcontractors, or a clinician preparing for a surgical procedure. Here fear of the law – whether prosecution or litigation – can certainly change behaviour, as random-breathalyser laws have shown. But, even then, deterrence rarely works as one might assume, which is why prisons are bulging and millions shrug off the death penalty and still smoke cigarettes.

Not necessary to ensure justice

It is also sometimes suggested that, freed of criminal sanctions for making serious errors, doctors and nurses would be privileged and above the law. My answer to that they should not need to be a special case. All manslaughter charges, including death by careless or dangerous driving, should be restricted to cases where there is a priori evidence of wilful misbehaviour. This does not affect the so-called eggshell principle, which describes the rule by which ‘you take your victims as you find them’: when you deliberately harm someone who dies as a result or is seriously injured, you can seek no mitigation if your target was especially vulnerable. But, critically, the rule should require wilful and not just negligent behaviour.

It is also suggested that the needs of justice must trump other considerations. I hope you will join me in regarding that as facile. Every action has a trade-off. Life is a transaction between different ambitions and needs. Even if GNM always resulted in justice – and as I have said I believe it frequently leads to injustice – the important question is: when applied to medicine does it on balance to more good than harm?

Diverts NHS resources

GNM wastes NHS resources in a way that no thoughtful priority-setting would consider sensible. Healthcare systems throughout the world are struggling with cost inflation, novel treatment options, mounting drug resistance, rising expectations, ageing populations, increasing rates of comorbidity and difficulties of recruiting and retaining staff. In Britain waiting times have ballooned, the physical condition of many clinics and hospitals is in embarrassingly poor because of capital budget constraints, running costs are severely curbed with control totals imposed from above, and managers and clinical directors are struggling to make savings wherever they can. When medical error is identified they need to respond quickly and thoroughly to put things right where possible, to learn from the mistake and to implement safeguards so that in future behaviours default to safe. Having valuable and competent clinicians subjected to criminal investigations, suspended and removed from service is not conducive to raising standards of patient care.

Undermines candour

Yet there is plainly a further, much more worrying, effect. GNM is inimical to candour. It is widely recognised that failure is the best way to learn and, as I hardly need point out to you, lack of frankness is especially damaging in a clinical setting where lives are at risk. Good clinical governance requires an open learning culture which designs out risk and discourages defensive medicine.

The medical profession has known for decades that a blame-free culture is the way to establish patient safety. The National Confidential Enquiry into Perioperative Deaths (NCEPOD) was established thirty years ago to find out what went wrong when surgery resulted in fatalities, and, as its name implies, it was a specifically anonymised investigation. It developed into the National Confidential Enquiry into Patient Outcome and Death which was regarded as so important to patient safety that it became a condition of registration with the GMC that doctors must participate in the work of confidential enquiries. Liberating doctors from fear of castigation saves patients’ lives. The Francis and Berwick Reports are testament to this, and to the fact that it is uncontroversial among medical safety professionals. Patients deserve an atmosphere which promotes transparency and honesty.

The GMC is equally aware of this. It has publicly acknowledged that concerns about GNM ‘could make doctors less candid about errors,’ and Professor Terence Stephenson has made the point himself that their Bawa-Garba referral has ‘set us back’ in this regard. There are no data to substantiate the chilling effects of GNM, but the logic is compelling: criminalise clinicians for making well-intentioned mistakes and doctors will be less likely to admit to their own mistakes or to speak out about the mistakes of others.

I do not seek to suggest that GNM is the only, or even principal, cause of distorted values in the health service. Sir Robert Francis correctly identified a systemic problem of hierarchies and closing ranks: ‘too often those who raise concerns about things that go wrong become unpopular with colleagues’. In response, the thrust of a great deal of recent healthcare policy has been to encourage disclosure. These include the Nolan Principles established in 1995, the (ineffectual) Public Interest Disclosure Act of 1998, and perhaps most notably the so-called Freedom to Speak Up (FTSU) guardians, whose very title tacitly acknowledges that healthworkers do not habitually feel the freedom to speak up. I can testify as someone who supervises guardians in an acute hospital trust that even staff who do disclose are often fearful, and NHS staff surveys across the country suggest such anxieties are commonplace. As you will be aware, NHS Improvement (NHSI) has been sufficiently worried about this as to launch a formal Whistleblowers’ Support Scheme.

Candour, whistleblowing, self-reflection, learning and improvement all require a culture change which goes far beyond the legislative framework. There is also the burden of civil litigation, especially in obstetrics. But GNM is the most visible symbol of scapegoating. I submit that it is simply not credible that piling on layers of different initiatives will encourage people to speak up as they should. Patient safety deserves root and branch reform.

Indeed, not only should doctors and nurses be liberated from the threat of criminal sanctions for making a mistake; they should be discouraged from giving evidence in criminal courts against colleagues who have made mistakes. It is all very well for the medical profession to criticise parliament and the courts for pillorying doctors; but no prosecution for GNM against a surgeon or physician can succeed without another doctor denouncing the defendant. The adversarial process enjoyed by British courts is in many ways antagonistic to the scientific method, swayed by theatricality, selective in what evidence is allowable, after which elements are then cherrypicked and presented with deliberate bias, leading to evaluation by inexpert assessors forced into a binary conclusion. Despite new safeguards about expert witnesses, many are still chosen to support the prosecution or defence case, are often ‘bought’ inasmuch as court fees provide a considerable source of income, and can sound authoritative even if they are out of touch. Regrettably, it is not unknown for a specialist consultant with a relatively easy life, perhaps enjoying private practice or effectively retired, to testify against a colleague who has much less specialist experience and/or faces more intense and complex pressures.

Results in injury and death

Even if fear of prosecution drove doctors to be cautious it can put lives at risk. There is anecdotal evidence that normally diligent doctors are tempted to ‘overtreat’ and there are many academic attempts to quantify the effects of defensive medicine. Your review might benefit from a review of the literature. Excessive intervention distorts rational allocation of time and resources which, in a capped system like the NHS, robs other patients of timely care. But in many cases defensive medicine is also directly against the patient’s interests. Unnecessary investigations such as x-rays and other scans, invasive tests or unwarranted drugs and procedures given ‘just in case’ probably cause hundreds of deaths and thousands of injuries each year, although these harms are hard to identify, hard to count and often far removed in time from the doctor who ordered the investigation or the treatment. This largely invisible toll, resulting from doctors’ fear of getting things wrong, will vastly outnumber the patients like Jack Adcock who suffer from underdiagnosis and undertreatment of the sort that leads to criminal prosecution. Yet the two issues are deeply interrelated.

The once-in-a-generation opportunity for change

Even should you conclude that your terms of reference prevent you from proposing legislative changes, I hope at least you will conclude that the GMC has a duty to urge debate by parliament and the public and to point out that established laws and processes have unintended consequences. These are matters over which the GMC stands responsible and, where they are reluctant to be controversial, they need you to help give them resolve.

I have mentioned that Terence Stephenson has acknowledged it is everyone’s right to fight for a change in the law and that he himself has proposed a form of legal privilege for doctors. Yet he feels conflicted. He has also told me, ‘this is a matter for government and parliament, not for a professional regulator. The GMC cannot be above the law of the land.’

Setting aside the curious notion that it is ‘above the law’ to seek law reform, there is nothing in the Medical Act or any other protocol that obliges silent acquiescence to ageing legislation. In fact, I can think of no one better placed to propose reform than a professional regulator. Simply by standing against increasing use of GNM it could do much to reassure doctors, encourage more openness and thus shelter healthcare from a law which is intrinsically detrimental to patient safety.

The Bawa-Garba case has provided a once-in-a-generation chance to reconsider a law which has grown like Topsy, distorts healthcare and diminishes patient safety. By all means mitigate the worst effects of GNM on medicine, but since the law itself has malevolent effects the sooner it is reformed the fairer, better and safer the world will be.

 

Mitigating the ill-effects of GNM

This brings us safely back well within the terms of your inquiry, with the task of working out how to make the most of a bad law and injurious procedures: if the GMC chooses not to challenge the status quo, how, at very least, can it protect patients from GNM’s most damaging effects?

 

Does the GMC have to erase doctors convicted of GNM?

First, there is the question of whether, whatever the law, the GMC has a duty to strive officiously to enforce the verdict of a crown court as it did with Bawa-Garba. Charlie Massey has said that he acted on legal advice and that not to appeal the case would be to have gone ‘behind the verdict of the jury’. I am not a lawyer but I urge you to consult others who are. There is no general legal impediment to going behind a verdict; if there was it would be contempt to question convictions and we would not allow appeals. It is true that a junior court cannot set aside the verdict of a higher court, but a Medical Practitioners’ Tribunal does not seek to set aside a verdict. It is not a judge of criminal culpability but of fitness to practice, an appraisal it is specifically appointed to conduct and one for which it is better equipped to judge than a crown court jury.

Nor do I believe it is incumbent on the GMC to seek erasure of a doctor following a jury verdict. Having studied Section 35c of the Medical Act 1983 I believe the GMC was wrongly advised.

If I am wrong, and the legal opinion was right, you might conclude that Mr Massey’s impulse should have been to seek a second opinion, or quietly ignore the matter – or at very least refer the matter to Council. After all, to follow such advice resulted in the persecution of a doctor when, as he has conceded, her competence was not at issue. You may think it worth questioning why he did not challenge the legal advice, complain that it amounted to double-jeopardy, and resist its implications for medical candour and patient safety.

Terence Stephenson says unambiguously, ‘I wholeheartedly agree that protecting and promoting patient safety must be the first priority of the GMC’. Yet you might wonder whether with Bawa-Garba, the instinct was really to protect the public or to protect the GMC.

Should the GMC be in the business of image management?

Second, I propose that the GMC should commit to a robust review of its own statutory purpose set out 35 years ago. Essentially it has four overlapping obligations: to set standards, to oversee training, to regulate which doctors are competent to practice, and to sustain the public’s confidence in doctors. I submit that it does not do all of these well. You are not concerned with the first two duties, but I recommend you consider whether a body that determines a doctor’s moral and technical competence should also be responsible for a profession’s public relations.

The Bawa-Garba case is again a good example, but the principle is perhaps best illustrated by that of Chizoro Edohasim who has fallen foul of a similar law to GNM. Dr Edohasim was involved in a car crash which killed his own daughter, injured another and crippled himself. The vehicle’s telematics showed that on approaching traffic lights he applied the accelerator instead of the brake, achieving 100% acceleration up to the point of impact with a wall. He was convicted of causing death by dangerous driving and sentenced to four years imprisonment, reduced on appeal to three. It is not your concern that this legal sanction has bewildered and ravaged his family, nor that it will do no good, nor even that the prison authorities deny him adequate medical treatment. What should be your concern is that the GMC has warned him that, in view of his conviction, they are considering erasing him from the register.

Charlie Massey tells me such actions are necessary in order to fulfil Council’s duty to sustain public confidence in doctors. Regardless of the fact that the crash was plainly not deliberate, and that Dr Edohasim has already suffered terribly, or even that taking away his livelihood is disproportionate, will harm his family, deprive the NHS and place additional burdens on public finance, I submit that the only question the GMC should be concerned with is whether or not he is competent to work safely and effectively as a physician. Its overriding concern should be the safety of the public. It should be for others, perhaps the BMA or the royal colleges, to safeguard the profession’s reputation.

The GMC still smarts from the memory of 2004 when there was public disquiet around several doctors who had harmed patients, where the system had failed and where, in Terence Stephenson’s own words, ‘the perception was that the GMC was a doctors’ club looking after its own’. I suspect this is why it is so anxious about public perception.

But elision of the two ambitions – regulating for competence and defending the profession – has unfortunate consequences. It bars competent, and even exceptional, doctors from practice (destroying careers and creating much grief in the process) and it confuses protecting patients with protecting the profession. It is, in short, conflicted. In Bawa-Garba’s case she had a creditable record and in the two years between Jack Adcock’s death and her trial she was regarded as a perfectly good doctor. As I say, Charlie Massey accepts that he had no reason to doubt her general competence, and Terence Stephenson acknowledges that her errors must have been unusual: ‘a conviction for manslaughter by reason of gross negligence is not about everyday mistakes…. The failings must be truly exceptionally bad’. As it happens, I do not accept this. Even Professor Stephenson concedes he has, ‘certainly made mistakes as a doctor’, and many doctors say they have had similar lapses, although thankfully without such disastrous repercussions. One consulted told me he thinks he might have killed a patient, and since it was the outcome, not the error, which did for Bawa-Garba, several have said, ‘There but for the grace of God go I’.

But even if we take at face value that Bawa-Garba’s failings were truly, incomparably sloppy, no one has suggested that her blunders on this occasion were anything other than an extraordinary exception. It follows that she was erased even though this was an unprecedented and singular event. This blurring of boundaries between personal proficiency and being a professional liability is not just intellectually flabby but ethically distressing too. It means the GMC is sacrificing capable doctors on the altar of untested assumptions about public opinion, or on Council’s fretful concern about challenging the legal status quo.

The dual responsibility also muddies the waters. Professor Stephenson is emphatic that, ‘retribution has no place in our work.’ Yet if it is accepted that Bawa-Garba was a generally competent physician with whom patients would be safe (and perhaps no other doctor of her rank would now be more attuned to sepsis), her removal from the register can only be retributive. Her erasure may not have felt retributive to Charlie Massey and Terence Stephenson, but they were the instrument of retribution. They pulled the trigger out of fears that the public would be vengeful. We all need to face up to this reality: the fact that she took a bullet for the profession shows retribution does have a place in their work. It is forced upon them by their role in image management.

Is the GMC inconsistent or even racist?

Third, I urge you to challenge the GMC not just on principle but on its practice. Mr Massey has claimed that not to have de-listed Bawa-Garba would have set a precedent, and Terence Stephenson insists that in every case of GNM since 2004 the GMC has sought erasure.  I suggest you examine its record. In a letter to Terence Stephenson of 14 February I cited two cases where physicians had prison sentences, one for manslaughter and one for negligence, neither of whom was struck off and at least one of whom, having served his time behind bars, returned to useful and subsequently unblemished service[v]. I have not yet heard from the GMC that my information is incorrect. Since then I have been told of doctors who have survived erasure despite clearly been cheats or even criminally dishonest, along with some convicted of sex offences (including, I believe, some still on the sex offender register). These make a tragic counterpoint to others like Hadiza Bawa-Garba who have been struck off for one-off clinical errors.

You will be aware of the racial implications in all this. The GMC acknowledges the persistent overrepresentation of complaints against ethnic minority doctors – some 10.2% of BME doctors were referred between 2010 and 2016 compared to 8.8% of white doctors. Clearly the GMC cannot be held responsible for those who refer complaints to them. Perhaps doctors trained overseas, with different cultural heritage and with English as a second language, are less likely than British-trained doctors to meet the professional expectations of British patients. In any case, fewer than 3 per cent of referrals are passed on to a tribunal. But many doctors I have spoken to fear there is systematic bias and, as you know, local Medical Committees (branches of the British Medical Association) have been so concerned as to have declared no confidence in the GMC.

The question of bias is the subject of a separate inquiry, but you will want to be sure that the GMC has a robust process for showing that it is sensitive to racial stereotyping, that its judgments are consistent and that its outcomes are clearly fair. If nothing else, the tension over this underlines that confidence in the GMC is shaky.

Should the GMC put doctors on trial?

Fourth, although not directly related to GNM, you may wish to consider the adversarial nature of the GMC’s procedures. As I have told Professor Sir Norman Williams, the GMC seems not to understand how much it is reviled. It inspires fear in those who have come up against it, has long and drawn out processes which can leave doctors in limbo for months or even years (sometimes with devastating effects on their families, their careers and their health), it expects defendants to pay their own expenses and travel as instructed, and makes no amends if a case is dropped or fails.

I hope you will take evidence by those who say their lives were ruined by the GMC even though complaints against them were rejected. According to the GMC’s 2016 report, of 9,140 referrals only 245 were sent to a Medical Practitioners’ Tribunal (MPT), and only about 70 are erased in any year. Nonetheless all 9,140 defendants lived in fear for months or years, often with diminished opportunities in their careers. It is simply unacceptable that the process takes so long. The great majority of cases should be resolved within 28 days.

In order to achieve that, its procedures need to be transformed, be much less long-winded, less defined by lawyers, and be refined to focus on actual (rather than perceived) fitness to practice. It should privilege retraining and upskilling over sanctions. Again, these are all issues where the GMC should be more audacious and more willing to set out its stall for regulatory reform.

Is the GMC used to suppress whistleblowers?

Fifth, again not directly related to GNM, it may be useful to consider whether, and if so to what extent, fear of the GMC is used cynically to suppress openness in the NHS. The report by Sir Anthony Hooper QC three years ago, called On the handling by the GMC of cases involving whistleblowers, reported that, ‘employers are using the process of making a complaint to the GMC about a doctor’s fitness to practise as an act of retaliation against whistleblowers because he or she has raised concerns’. I do not believe the GMC is complicit in this. As I say, more than 97 per cent of complaints are rejected without going to an MPT. What is more, by no means all these referrals come from management. Nonetheless Sir Anthony concluded that, ‘the GMC unwittingly becomes the instrument of the employer in its campaign against the whistleblower’. He also reported that employers are refusing to revalidate doctors who try to speak out. I have been advised of two senior doctors who withdrew retracted statements of concern when they were told that they would not be revalidated unless they did so.

I accept there is a more general problem here. For example, there are stories of medical directors who make it clear that consultants who raise concerns will not get discretionary points or gain support for national awards. But I have no doubt that, unintentionally, the GMC has a role in subverting safety by making staff feel it is unsafe to raise concerns. Above all of this GNM now hangs like the sword of Damocles.

Is the GMC the best way to regulate?

Sixth, this is a golden opportunity to rethink medical regulation in the round. The GNM controversy has put the GMC in the spotlight and the government’s review, Promoting professionalism, reforming regulation, is still under way even though the period for consultation has closed. It is surely important for you to liaise with that review, to share information and ideas, and to question whether reform might be beneficial.

 

Final words

I have many links with medicine. But they are all voluntary. I am not medically qualified, and I do not speak for doctors. My prime concern is patients.

Nor do I lack empathy with victims like Mrs Adcock whose son, Jack, died because of failings by Dr Bawa-Garba among others. I have myself suffered a form of sepsis which, were it not for the remarkable perceptiveness of a GP, could have proved fatal. I have had a major operation which I am now told was ill-advised – and perhaps unnecessary – as a result of which I have suffered serious and potentially life-threatening events. I have a close relative whose medical treatment was so inept that he required corrective surgery and is still disfigured. I can see plainly why some people want those who make serious medical mistakes not just to be held accountable but to be chastised.

But while anger and grief are understandable they do not bestow special wisdom; indeed, it is rare that they can be assuaged by seeing someone punished. Many ill-treated patients, and many who’ve been bereaved, have found comfort in pushing for more transparency and systematic accountability rather than personal blame. You may wish to hear from Melissa Mead who spoke so movingly two years ago at the Conservative Party conference. Like Jack Adcock, her little boy William died from undiagnosed sepsis – in his case after what the Daily Mail headlined as, ‘a staggering 15 failures in his care’. But Mrs Mead pointed out that a retributive response to failure invites the very dangers some activists for retributory justice seek to avert.

Mistakes will happen. But victimhood does not justify vindictiveness. Even so-called ‘unforgivable’ failings are only unforgivable when we are unable to see ourselves in other people’s shoes. We, as patients, must expect clinicians to use their best endeavours, but the pact we make with doctors should be reciprocal: we should also empathise with them.

Perhaps it is because I have spent so many years in live broadcasting that I understand how easy it is to have a lapse in attention, to have failed to prepare for an interviewee’s obvious evasion, to have missed something that in hindsight was clearly important. But mistakes in journalism very rarely kill. Mistakes in medicine frequently do. Estimates vary but there are probably between 1,200 and ten times that number of avoidable deaths in England each year in hospitals alone, and perhaps 1.4 million adverse events in total[vi].

If nothing else I hope you conclude that systemic challenges need systemic responses; not vexatious and hugely distracting harassment of a very few generally competent doctors who made well-meaning mistakes and who are already tormented by misjudgements when they were trying to do good.

 

SUMMARY

Senior GMC officials have assured me you have authority to look beyond existing law and examine unintended consequences of gross negligence manslaughter, something the Williams Review cannot. Only through understanding the illogicality and unfairness of GNM in general is it possible to see why workarounds can never improve patient safety to a desirable extent.

Even given existing law I question both the legal advice given to the GMC over the Bawa-Garba case and the GMC’s motives for so quickly and actively pursuing its implications.

 I suggest such actions are inimical to a culture of candour and learning. Despite many attempts to make NHS staff feel at ease in speaking out, stubborn obstacles remain. While criminal prosecution of doctors for mistakes are relatively rare, the threat of criminal sanctions is the most visible sign of their vulnerability.

 Just as bad as fear of speaking out is the risk of defensive medicine. If GNM has a deterrent effect it will mostly be harmful. The threat of criminalisation cannot change decisions made in the heat of the moment but it can influence actions that are planned. Unnecessary or avoidable tests and treatments kill and injure thousands of patients each year, and though the toll is visible only through epidemiology, every life lost or damaged in this way is just as valuable as that of patients like Jack Adcock.

 I ask that you see the Bawa-Garba case and the effects of GNM on doctors as a once-in-a-generation opportunity to improve the GMC more generally. While my prime concern is patient safety, I urge you to examine the terrible toll exerted on doctors by the GMC’s painfully slow and legalistic processes which each year ensnare some 10,000 clinicians causing hundreds to have stalled careers despite almost all of them eventually being cleared. There is also prima facie evidence of inconsistency and racism. Whether or not this is central to your terms of reference you are uniquely well-placed to propose reforms.

Adversarial approaches in medicine should be comprehensively discouraged. This applies equally to doctors themselves, who should stop cashing in on court cases to give evidence against colleagues. Accountability should lead to improvements in patient safety not to punishment for honest mistakes, however ‘unforgivable’ genuine errors might seem.

Medicine is a powerful and therefore dangerous business. Just as doctors should be expected to empathise with patients, so patients should be expected to empathise with doctors.

 

I wish you well with your deliberations.

Nick Ross

 

[i] Crime outcomes in England and Wales, year to December 2017: data tables (Table 3.2)

[ii] [1937] AC 576, pp581-2.

[iii] Hannah Quirk, School of Law, University of Manchester, Crim. L.R. 2013, 11, 871-888

[iv] http://www.preventingoverdiagnosis.net/2014presentations/Board%203_Katharine%20A%20Wallis.pdf

[v] https://www.bmj.com/content/360/bmj.k481/rr-6

[vi] Dept of Health & Social Care, 14 December 2017, NHS becomes first healthcare system in the world to publish numbers of avoidable deaths  (https://www.gov.uk/government/news/nhs-becomes-first-healthcare-system-in-the-world-to-publish-numbers-of-avoidable-death); Public Administration Select Committee report, 27 March 2015, Investigating clinical incidents in the NHS (ttps://publications.parliament.uk/pa/cm201415/cmselect/cmpubadm/886/886.pdf)


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