RCoA submission to the Clare Marx Review of gross negligence manslaughter and culpable homicide

PLEASE NOTE:  Following the recent appointment of Dame Clare Marx as Chair of the General Medical Council (GMC) from January 2019, the GMC has announced that Dame Clare will step down from leading the independent review of gross negligence manslaughter and culpable homicide in medicine with immediate effect. Mr Leslie Hamilton, a former cardiac surgeon, will take over as Chair of the Review.  Our submission was made prior to this announcement and therefore makes reference to the ‘Clare Marx Review’ or ‘Marx Review’ throughout.

The Royal College of Anaesthetists (RCoA) has submitted written evidence to the Clare Marx Review into gross negligence manslaughter and culpable homicide in medicine. The review will be informed by the findings and recommendations of Sir Norman Williams’ rapid policy review into the issues relating to gross negligence manslaughter in healthcare. The RCoA’s response to Sir Norman Williams Review can be read here.

In our response to the Marx Review we outlined our view that robust recommendations on the legal protection of doctors’ reflections and the role of corporate management in serious incidents are needed.

Echoing our response to the Williams Review, our written submission highlights the role that systemic failures can play in these rare and tragic cases and calls for a more balanced approach and greater clarity in determining when allegations of gross negligence manslaughter apply to healthcare professionals. The focus for regulators and everyone else involved needs to be primarily on learning, not punishment.

Our submission also stresses the importance of good communication with relatives and the need for staff as ‘second victims’ to be better supported during investigations.

Below is a summary of the recommendations in our submission to the Clare Marx Review:

• An agreed and clear position needs to be framed, giving medical practitioners clarity on what constitutes a criminal act in medical practice, supported by clear guidance and examples, which should be agreed and used consistently by hospitals, regulators and the legal professions. We support recommendations from the Williams Review for a descriptive statement of gross negligence manslaughter (GNM) in healthcare.
• The quality of local investigations needs to be improved across healthcare providers in all countries, by: agreeing standards for training; dealing with and involving bereaved families; allocating adequate resources; setting of quality assurance processes for the staff involved in investigations.
• More consistency is required in how cases of GNM and CH are handled by the police and we support the creation of a virtual police unit to advise Senior Investigating Officers dealing with these cases, as recommended by the Williams Review.
• There is currently too much variability in coronial services across the countries; greater centralisation is required to ensure that families have access to equality of justice and that clinical staff are treated fairly and consistently when a death occurs.
• The police, judiciary and coronial service need to recruit credible expert witnesses who are up to date and hold a current licence to practise, in order to offer balanced evidence and clinical advice that takes into account systemic failures and human factors, alongside issues around clinical competence.
• Steps must be taken to ensure that doctors’ reflections are not used in an adversarial fashion in judicial proceedings or by healthcare regulators. In these rare, and often tragic cases, the focus for regulators and everyone else involved needs to be primarily on learning, not punishment, and reflections are a powerful tool to achieve this.
• Greater support needs to be available to healthcare staff involved in investigations by regulators and the authorities. In addition consideration needs to be given to the effects of serious incidents on all healthcare staff involved as ‘second victims’.
• The Review should look at governance arrangements for regulators, in particular the right of the GMC to appeal MPTS decisions, in light of the fact that the PSA holds the same powers.
• Consideration should be given to the role of managerial accountability and system failures when deaths occur in healthcare; currently individuals incur a higher risk of legal proceedings than the organisations they work for. This balance needs to be redressed, especially if system failures have been found to play a part in the death of a patient.

You can view the full response here.