The Royal College of Surgeons

35/43 Lincoln’s Inn Fields London WC2A 3PE www.asit.org

Telephone: 0207 869 6681

Email: info@asit.org

2nd July 2018

Association of Surgeons in Training respond to Professor Sir Norman Williams’s review into gross negligence manslaughter(GNM) in Healthcare published 11th June 2018.

The Association of Surgeons in Training (ASiT) is a professional body and registered charity (no: 274841) working to promote excellence in surgical training for the benefit of junior doctors and patients alike. With a membership of over 2700 surgical trainees from all 10 surgical specialities, the Association provides support at both regional and national levels throughout the United Kingdom and Republic of Ireland. Originally founded in 1976, ASiT is independent of the National Health Service (NHS), Surgical Royal Colleges, and specialty associations. Governed by an elected Executive and Council, the Association is run by trainees for trainees.

The Williams review into Gross Negligence Manslaughter (GNM) in Healthcare is of particular relevance to trainees of all specialties in light of the recent outcome of the Dr Hadiza Bawa-Garba case (1). Unsurprisingly, this case has highlighted the fear and uncertainty for medical trainees across the UK, relating to key areas: a potential personal conviction in the face of widespread systemic inadequacy and the potential use of mandated reflective documents ‘against’ a trainee in the event of prosecution.

ASiT recognises that the unexpected death of a loved one is a traumatic and emotive time. Families are absolutely correct to expect a thorough, transparent investigation into the cause of an adverse event, with a focus on learning and improving care. Indeed, as surgical trainees striving for excellence, we would wish for this calibre of investigation in all cases where care fell below the highest of standards and therefore there is opportunity to learn and improve.

ASiT supports the review recommendations that recognise the need to obtain a clear statement on the law of gross negligence manslaughter and a definition of the threshold of GNM within healthcare, which is thereafter implemented consistently in the Crown Prosecution Service (CPS). It is clear that this is an absolute necessity in order to ensure transparent and fair legal proceedings . Whilst ASiT acknowledges the number of cases of GNM remains very small, there is clearly a disproportionate number of healthcare professionals referred to the CPS for GNM, as compared to the normal working population. Approximately 200 cases per year are referred to the CPS. From 2013-2018, 151 were medical cases i.e.15%,which is three times higher than the proportion of the general public who work in healthcare. It is therefore imperative that the law is explicit as pertaining to healthcare.

A central element of standardising legal practice will be to improve the quality of medical experts in GNM. ASiT therefore welcomes the development of high quality training for, and robust assurance of, these experts. ASiT also welcomes the specific reference to the importance of equality and diversity assessments that was made in both GNM investigation and fitness to practice hearings.

Standardising with improved memoranda of understanding of GNM in healthcare for investigating professional, prosecuting and policing bodies are also crucial. A structured Healthcare Safety Investigation Branch (HSIB) in cases of GNM would further streamline the ability to structure and standardise GNM investigation and management.

ASiT welcomes the recommendation to enshrine the right to appeal within the remit of the Professional Standards Authority and remove the duplicate power provided to the General Medical Council (GMC). It simply should not be correct that Doctors are subject to inconsistent appeal processes as compared to other healthcare workers. Furthermore, ASiT hopes that the removal of the GMC’s right to appeal will help re-instil confidence in this regulator following the tragic Dr Bawa-Garba case whereby an individual was pursued in the face of profound systemic failings and against the verdict of the MPTS.

The decision by the GMC to appeal the decision by the MPTS not to remove Dr Bawa-Garba from the medical register sent shockwaves through the medical community. The GMC pursuit of Dr Bawa-Garba has resulted in a loss of faith in the regulatory body among the trainee community and senior physicians alike. This truly tragic case was profoundly complex with multiple systemic failures: inadequate return to work induction after a period of absence; inadequate staffing levels; absence of senior supervision and IT failure. ASiT agrees that removing such duplicate power would create a more “just culture” where discussion of the significance of systemic issues and failures in GNM are recognised and not just individual accountability.

At the ASiT International Conference 2018, 88.9% of delegates attending a session on medico-legal ethics anonymously reported that they have changed their reflective practice for fear that their personal reflections may be used against them. ASiT therefore agrees with this report that clear, meaningful and genuinely practical guidance on how healthcare professionals undertake reflection , and absolute clarity from the professional regulators about how this might be used, are both imperative to protect this valuable tool for learning. Beyond this, we believe formal trainee and trainer education in the process of reflective practice is necessary and would be thankful for clarification on Consultant-completed trainee encounters and their potential use in legal proceedings.

We are disappointed that the review has failed to recommend legal protection for reflective documents, although we understand the rationale for this decision. ASiT has previously outlined our concern that any potential use of junior doctors’ reflections in legal proceedings will negatively impact patient safety, duty of candour and surgical training (2). Trainees reluctance to reflect openly and honestly for fear such reflections may be used against them is likely to undermine the process and limit the value of the exercise. ASiT recognise the importance and ethical duty of all doctors to engage in self-reflection, however whilst the law on GNM remains unclear, guidance and education on self-reflection is lacking and personal reflective documents have no legal or regulatory privilege, the process of reflective practice will remain an issue.

ASiT looks forward to engaging with the work led by Dame Clare Marx into a UK-wide independent review of gross negligence manslaughter and culpable homicide and the collaborative work between the GMC, AoMRC, COPMeD (Conference of Postgraduate Medical Deans) and the Medical Schools Council for further guidance on reflective practice.

Miss Gemma Humm
President
Association of Surgeons in Training
35-43 Lincoln’s Inn Fields, London, WC2A 3PE Office: +44 (0) 207 869 6681 http://www.asit.org | @ASiTofficial
Office Manager: info@asit.org

References:

1. Williams N. Gross Negligence Manslaughter in Healthcare. June 2018. Available at:

   https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat a/file/714977/Williams_review_into_gross_negligence_manslaughter_in_healthcare.pdf. Accessed on 14/06/2018.

2. ASiT response regarding ‘Back to blame: the Bawa-Garba case and the patient safety agenda’. BMJ 2017; 359 doi: https://doi.org/10.1136/bmj.j5534 (Published 29 November 2017).