As we approach the anniversary of the report by Professor Sir Normal Williams (published 11.06.2018) on the regulatory consequences of the application of the criminal law to the decisions and conduct of healthcare professionals, it is appropriate to take stock of its conclusions and the effect it may have on standards of medical care in the UK.
Following in the turbulent wake of the Bawa-Garba case, which involved the successful conviction of Dr Bawa-Garba for gross negligence manslaughter in November 2015, the Williams Report observed that “Though the legal bar for conviction for gross negligence manslaughter is high, investigations that have little prospect of conviction cause uncertainty and distress” and went on to conclude that professional guidance and a clearer understanding of the application of gross negligence manslaughter in the medical context “should lead to criminal investigations focussed on those rare cases where an individual’s performance is so “truly exceptionally bad” that it requires a criminal sanction”.
It is the task of The Marx Report to consider the appropriateness or otherwise of the application of a severe criminal sanction to the well-meaning conduct and decision-making of healthcare professionals.
A criminal sanction usually requires proof an intention to commit the criminal act alleged and, in the healthcare context, it is surely only in the very rarest, aberrant circumstances where that will ever be the case.
What is plain from the Bawa-Garba facts is that medical-decision making does not take place in a vacuum but in the intense activity, measured chaos and inter-connectedness of the hospital environment where everyone is subject to a high level of dependency, not only on personal expertise and judgement, but also on colleagues, equipment and technological resource. In such a context, it cannot be the case that every mistake should lead to criminal proceedings even when the consequences of such mistake are tragic.
Professionals are called upon to make snap judgements all the time in the interests of the greater good, whether the professional concerned is a commander in the heat of battle, a paramedic arriving at the scene of a traumatic car pile-up, a lawyer reviewing evidence, a fire-fighter attending a blazing building, or, yes, even an over-worked, under-resourced doctor. These decisions may on occasion be wrong, the conduct open to debate or criticism, but the law has to inculcate a culture where the professional concerned has the courage to make the decision, and to do what they consider necessary or appropriate in any given set of circumstances, without fear of criminal prosecution. Such a climate of fear will not raise standards of medical care and medical outcomes but will act to lower them because the professionals concerned will reserve judgement and forebear to act for fear of criminal reprisals where such decisions and actions are critically necessary and the consequences of such fear will itself only lead to further public harm, criticism and prosecution.
The conviction of Dr Bawa-Garba is surprising given the number of factors, apart from her own conduct and decision-making, thatso obviously contributed directly and inexorably to the patient’s regrettable death. The X-ray results were delayed for several hours due to a computer failure; her supervising consultant was not available until too late to be of any use; the registrar was away on a training day, there was no absentee staff cover; an agency nurse offered poor support: a parent wrongly administered inappropriate medication; Dr BawaGarba had only recently returned from maternity leave, was unfamiliar with the hospital, and had been given no induction training. Given the systemic failure of the hospital environment within which Dr Bawa-Garba was operating the wave of open-mouthed hostility from the medical profession, following her conviction for gross negligent manslaughter, is wholly unsurprising.
It cannot be right that an individual doctor should be prosecuted and convicted for conduct and decision-making where a death results from a whole series of administrative errors, a lack of resources and intervening, coincident events upon which the conduct and decision-making of the individual doctor concerned is wholly dependent. Here the duty of care that is breached is the duty of care that the entire service system is meant to provide and not simply that of the individual doctor.
It may be doubted whether the criminal law has any place in maintaining either an institutional, or an individual standard of care, but if the criminal law wishes to attribute blame in circumstances where a death results from a whole series of systemic errors and shortcomings, the manslaughter charge should be corporate, and not individual.
Systemic failures can only be remedied by systemic responsibility and systemic improvement.
If the objective is to preserve public safety and maintain care standards, rather than to punish a scape-goat, it should be remembered that the civil law of negligence is also available and again the imposition of damages, not blame, may be a better long-term mechanism for securing public safety and maintaining care standards than lone, arbitrary prosecutions under the criminal law.
It is to be hoped that law and policy will now change so that individual medical professionals will not be subject to arbitrary and serious criminal sanction where multiple other causes are equally, if not more, to blame.
Dr Gabriel Sherliker