Doctors should not be prosecuted for ‘honest mistakes’, says Jeremy Hunt

Doctors should not face prosecution where “honest mistakes” kill or harm patients, health secretary Jeremy Hunt has said in accepting a review of manslaughter charges in medicine.

To protect patients from mistakes and help the NHS prevent their repetition in future, Mr Hunt pledged that senior doctors, acting as medical examiners, would look at every death that is not reviewed by coroners.

Mr Hunt said the current system has a “chilling effect" on the medical profession, and fears of criminal charges made doctors less likely to admit mistakes and prone to defensive practice.

He accepted the major recommendations from a review by surgeon Professor Sir Norman Williams which was launched in the wake of junior doctor Dr Hadiza Bawa-Garba being stripped of her medical licence.

The trainee paediatrician was found guilty of gross negligence manslaughter in 2015 over the death at Leicester Royal Infirmary of six-year-old Jack Adcock after he developed sepsis in 2011.

A tribunal ruled she should remain on the medical register despite the conviction, but in January the General Medical Council (GMC) succeeded in getting her struck off after taking the case to the High Court.

The GMC’s actions angered many doctors who complained important issues raised by the case – including dangerous levels of under-staffing, failures of IT systems, and staff being required to work in inappropriate conditions – had been ignored.

In his report, to be published in full on Monday, Sir Norman calls for a “clearer understanding” of when proceedings for gross negligence manslaughter should be brought in healthcare, so practitioners are reassured they would apply only in cases of “very poor performance” and not “honest mistakes”.

While accepting the findings, Mr Hunt has sought to reassure patients and their families that there will be improved scrutiny of deaths in the NHS, with the roll-out of a system of medical examiners – senior doctors who will look at all patient deaths which are not referred to a coroner.

Officials said the changes would mean bereaved families would get more information about the circumstances of their loved ones’ deaths while more data would be shared across the NHS to help prevent avoidable loss of life.

“When something goes tragically wrong in healthcare, the best apology to grieving families is to guarantee that no one will experience that same heartache again,” Mr Hunt said.

“I was deeply concerned about the unintended chilling effect on clinicians’ ability to learn from mistakes following recent court rulings, and the actions from this authoritative review will help us promise them that the NHS will support them to learn, rather than seek to blame.”

In other recommendations, Sir Norman calls for the removal of the GMC’s power to appeal the rulings of the Medical Practitioners’ Tribunal, with challenges restricted to the the Professional Standards Authority.

He says regulators investigating fitness to practise should not be able request a practitioners’ personal case notes – known as reflective material – to ensure they were not deterred from using their notes for open and honest reflection on their performance. The GMC said it does not request reflective material as part of its investigations.

Sir Norman also calls for improvements in the processes for healthcare professionals providing expert opinion in criminal and regulatory cases.

In a further measure, Mr Hunt is announcing a new programme offering NHS consultants confidential data on their own clinical results and how they compare nationally to help them to learn and improve.

Sir Norman said his recommendations would support a “just and learning culture” in healthcare.

“A clearer understanding of the bar for gross negligence manslaughter in law should lead to fewer criminal investigations which are limited to just those rare cases where an individual’s performance is so ‘truly exceptionally bad’ that it requires a criminal sanction,” he said.

“This clarity together with an understanding by the investigatory authorities as to the complexity of modern healthcare in which the individual operates should help to dispel the real fear felt by healthcare professionals who are concerned that in the well-intentioned discharge of their duty they may be subject to criminal or regulatory processes.”

The British Medical Association, representing doctors, said it would be monitoring closely how the law was applied in the light of the review’s recommendations.

BMA council chairman Dr Chaand Nagpaul said: “If we, as doctors, and the wider health service are to learn from these mistakes and to prevent such tragedies occurring, the NHS needs a dramatic shift away from the current culture of blame.”

The GMC said it was “disappointed” that the review had not accepted its recommendation that doctors’ reflective notes should be given legal protection in court proceedings.

Jack’s mother, Nicola Adcock, said the recommendations were “wrong”.

She told BBC Radio 4’s Today programme: “How come this doctor can appeal at every single stage? How come it’s one rule for one and not for another?

“Why do doctors automatically assume that they are untouchable, that they are above the law?”

Mrs Adcock added that Dr Bawa-Garba had made “disgusting” errors in the treatment.

“I make mistakes, you make mistakes, we are not robots,” she said.

“But unfortunately she didn’t make one, two or three mistakes. That day on her own she made 21 errors.”

Additional reporting by PA