Earlier this year the Secretary of State for Health announced a review into the application of gross negligence manslaughter in healthcare led by Professor Sir Norman Williams. It was stated that this review was not set up to recommend changes to the law, but to look at how decisions are made within the current legal framework.
Eye care professionals were understandably keen to listen after the recent quashed conviction of optometrist Honey Rose.
Prof Williams wanted to carry out the review after recent cases led to an increased sense of fear and uneasiness within the healthcare professions and have also revealed arbitrariness and inconsistency in investigations and prosecutions of gross negligence manslaughter. The panel behind the review wanted to address and consider these inconsistencies in order to publish the document.
The review stated that the offence of gross negligence manslaughter required a ‘breach of existing duty of care, which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation and to amount to a criminal act or omission’.
The Crown Prosecution Service reports that the deaths of 38 patients have led to gross negligence manslaughter prosecutions of 47 healthcare professionals consisting of 37 doctors, nine nurses and one optometrist. Twenty-three of these were convicted and four prosecutions were overturned after appeals. These figures suggest that prosecutions of healthcare professionals for this offence are very rare and that a small number of prosecutions result in a conviction.
The GOC said it welcomed ‘the recommendations of the Williams review into gross negligence manslaughter in healthcare and the government’s commitment to take forward these recommendations’. It supported the ‘recommendation as it should clarify the current uncertainty about what is a fitness to practise matter – to be dealt with by the GOC – and what is a matter for the criminal courts’.
Currently the GOC has the power to require registrants to provide reflective practice materials to aid the decision in whether a fitness to practise investigation should be removed. A GOC spokesperson said: ‘Although we currently have this power we have never used it and will not do so; we consider it important that registrants are able to reflect on their practice for the purpose of learning without fear of their reflections being used against them at a fitness to practise hearing.’
The council also stated it supports the recommendations around fitness to practise by Prof Williams and said ‘many of them call for greater harmony between the different professional regulators, for example to promote consistency and information-sharing. We believe these changes would help public protection and we look forward to working with the Professional Standards Authority (PSA) and others to consider how they would be best achieved’.
In order to address any instances of bias or discrimination that may occur during the fitness to practise process, the GOC said it was committed to understanding whether any particular groups are over-represented.
‘Collecting equality and diversity data from our registrants as part of renewal this year was the first step to doing this. We already provide our panel members and staff with equality and diversity training and we support the PSA’s intention to introduce a new standard of good regulation in this area.’
The panel heard that Black, Asian and Minority Ethnic (BAME) registrants are often over-represented in the fitness to practise processes of many healthcare professional regulators.
While the General Medical Council (GMC) has shown through research that rates of referral to the regulators of BAME registrants were higher than expected, there was no evidence that the fitness to practise processes of the regulators themselves are discriminatory.
The GMC has also commissioned a review to better understand why some BAME doctors are referred to the regulator for fitness to practise issues more than others.
Real cases
Optics itself was directly rocked by the case in 2016 involving optometrist Honey Rose, where she failed to spot the signs of papilledema caused by a build up of fluid on the brain of a child patient back in 2012, which would claim his life five months later.
Rose was charged with gross negligence manslaughter and received a two-year suspended sentence. Her conviction was later quashed, after judges at the Court of Appeal decided that although there had been a ‘serious breach of duty’ by Rose, what she had been convicted of did not constitute the crime of gross negligence manslaughter.
Another conviction of gross negligence manslaughter that has been granted an appeal is of junior doctor Hadiza Bawa-Garba, who treated a boy with Down’s syndrome admitted to hospital due to diarrhoea, vomiting and difficulty breathing. Bawa-Garba was solely in charge of the emergency department and acute Children’s Assessment Unit on the day as there was no senior consultant available.
She had recently come back from maternity leave and made mistakes during the treatment, such as failing to ask a consultant to review the boy’s case and confusing him with another patient, causing her to briefly put a stop to CPR, and failing to specify that the medicine he was on for his heart condition should be stopped. His mother gave him a dose and he died of cardiac arrest an hour-and-a-half later.
Bawa-Garba was convicted of gross negligence manslaughter and given a two-year suspended sentence. She was not struck off the register, but instead was suspended from working for 12 months and her first appeal against her sentence was denied at the Court of Appeal. The GMC appealed and succeeded in having her struck off the register.
Medics responded by raising over £2million to fund a legal team to review the case and challenge the conviction again. This has led to doctors threatening to boycott their personal evaluations, fearing that it could be used as legal evidence against them should they make a mistake, as Bawa-Garba’s own reflections contributed to her being struck off the register.
The GMC has disputed this however, claiming that her reflective statements were not used as evidence against her but were actually brought in by her defence team.
