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Published 12 junio 2018
In the wake of the controversial Bawa-Garba case, the government commissioned a rapid policy review into the prosecution of doctors for gross negligence manslaughter and the related work of professional regulators.
The Chair of the review, Professor Sir Norman Williams, has now reported to Jeremy Hunt, who has made clear that he endorses certain significant recommendations, including that the GMC should no longer be empowered to appeal the decisions of Medical Practitioners Tribunals.
The recommendations were released to the public on 11 June along with press reports of selected recommendations Mr Hunt intended to take forward. Precisely how the adopted recommendations will be implemented is not yet clear. Certain recommendations would be capable of rapid implementation unilaterally by the Secretary of State, but others may require more complex procedures, including primary legislation requiring parliamentary approval.
In his letter to Mr Hunt, Professor Williams makes clear that the review panel's recommendations were unanimously agreed following a careful exercise exploring a multitude of issues. The report highlights the balance required between the public's right to transparency, explanations, accountability and assurances where there is an unexpected patient death on the one hand, and on the other hand the need to maintain a "just and learning" culture rather than a "blaming" culture amongst healthcare professionals, the latter of which leads to fearful practitioners and defensive medicine. It also raises concern over the apparent disproportionate number of Black, Asian and Minority Ethnic professionals subject to criminal and regulatory legal proceedings. Bearing all of this in mind, the review makes almost 30 individual recommendations under 10 headings.
The recommendations likely to have the most impact include:
Clarity of understanding and consistency in investigation/prosecution of gross negligence manslaughter
A working party should be formed to set out a clear explanatory statement of the law on gross negligence manslaughter (including, as a minimum, representatives of the CPS, coroners service, Treasury Counsel and healthcare defence organisations). This explanatory statement should be followed by:
Co-ordination of investigations and quality of expert witness evidence
Reflective writing by healthcare professionals
Healthcare is perhaps the most densely regulated of sectors, with myriad public and private organisations possessing innumerable legal obligations to act in some way where an unexpected death occurs. The interactions between so many stakeholders can be incredibly complex. Many will accordingly see these as a sensible set of recommendations - particularly those that essentially encourage the stakeholders to talk to one another and publish memoranda and guidance promoting clarity and consistency.
The recommendations would generally be capable of implementation rapidly and with a minimum of formal legal impetus. Indeed certain stakeholders, for example the AMRC, have already signalled their intention to deliver on the recommendations. The benefit of this approach is also its weakness - much of the effective implementation of the recommendations is in the hands of the stakeholders, and so it may be in order for timescales to be set and compliance monitored by the DoHSC when formally confirming which recommendations it supports.
Whether the review achieves the intended aims is something that will only be capable of measurement over the longer term, as the recommendations form only the first step on a long path of reform.
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