- Independent review follows case of Hadiza Bawa-Garba
- Clinicians in Scotland have to be wilfully reckless or intend harm to be prosecuted, unlike England
- GMC decision to pursue Dr Bawa-Garba led to a breakdown in relationships with the medical profession
An independent review to examine the use of gross negligence manslaughter laws in medicine has avoided examining whether the law in England should be changed.
The review, commissioned by the General Medical Council following its failed legal bid to have Hadiza Bawa-Garba permanently struck off the medical register, said its decision to pursue her led to a breakdown in relationships between the watchdog and doctors.
While the review panel, led by surgeon Leslie Hamilton, recommends widespread changes to processes and policies to better support patients and doctors after incidents, it did not look at whether the law on gross negligence manslaughter should be reviewed.
Dr Bawa-Garba was convicted of gross negligence manslaughter in 2015 following the death of six-year-old Jack Adcock, who died in 2011. While Dr Bawa-Garba made numerous serious mistakes, a tribunal into her practise also highlighted widespread systemic issues on the day she was working.
While in Scotland clinicians must be wilfully reckless or intend harm to be prosecuted, in England and Wales that is not the case.
In the report, Mr Hamilton said: “For some, realising a just culture means changing the law surrounding gross negligence manslaughter and culpable homicide. That was not within the remit or competence of this review.
“Instead, our focus has been on how the systems, procedures and processes surrounding the criminal law and medical regulation are applied in practice and how they can be improved to support a more just and fair culture.
“In Scotland… we have not identified any convictions of a doctor for culpable homicide linked to the discharge of their medical duties. Indeed, many of the concerns reported to us do not seem to arise in the Scottish context.”
The GMC told HSJ the the question of changing the law was a matter for government, adding: “This review was commissioned to review the application of the existing law, and the consistency of existing processes and procedures across the UK.”
The report said the criminal prosecution of doctors was extremely rare but the effect of the GMC’s actions against Dr Bawa-Garba had been “palpable and profound”.
It added: “Many doctors feel unfairly vulnerable to criminal and regulatory proceedings should they make a mistake which leads to a patient being harmed. The depth of this feeling has resulted in a breakdown in the relationship between many doctors and their regulator, the GMC.
“The GMC must take urgent steps to repair that relationship so that it is better able to work with and support doctors in delivering a high standard of care for their patients.”
The report said the existing processes both within the GMC, NHS trusts and other bodies “often do not serve the needs of doctors or patients and their families”.
The report made a total of 29 recommendations for changes.
In a statement, Charlie Massey, the GMC chief executive, accepted his decision to appeal the case against Dr Bawa-Garba had “undoubtedly affected our relationship with the doctors we regulate”.
He added: “The report says we must rebuild trust with the profession, and we fully accept this challenge. Having reflected as an organisation, we are committed to acting on that and taking forward all the recommendations in this report directed to us.”