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When the worst happens:
what is “Gross Negligence”?
Leslie Hamilton LLM FRCSEng FRCSEd(C-Th)
Consultant Cardiac Surgeon (rtd)
past Council RCSEng (Sellu)
Assistant Coroner (Durham + Darlington)
Independent Review of GNM: chair
Newcastle 14 November 2019
(in England, Wales + N I)
Multiple Jeopardy (MPS)
GMC
Coroner’s Inquest
Clinical Negligence Claim
Trust Disciplinary (dismissal)
Gross Complaint Negligence Manslaughter
Gross Negligence Manslaughter
Case Law
(Corporate Manslaughter: statute)
R v Bateman (1925)
The doctor must be proved to have shown such disregard
for the life and safety of others as to amount to
a crime against the State and
conduct deserving of punishment.
Gross Negligence Manslaughter: the Law
R v Adomako [1994] UKHL 6
- Anaesthetist: failed to notice oxygen disconnected
- House of Lords (Lord Mackay of Clashfern):
- the defendant owed the victim a duty of care
- the defendant breached that duty
- the breach caused (or significantly contributed to) the victim’s death
- the breach was grossly negligent.
David Sellu
MB BCh 1973 Manchester
Consultant Colo-rectal Surgeon, Clementine Churchill, London
Inspirational Leader
Consultant Neurologist →
sense of injustice
- petition (> 300) to College Council
- “do something about experts”
- → Council debate
- President: Dame Clare Marx
BMJ 2019;364:l1024 doi: 10.1136/bmj.l
Dr Hadiza Bawa-Garba
- Coroner referred case to Police
- 2012 CPS: no further action
- compare Scotland
- July 2013: Coroner’s Inquest
- “Expert” said cardiac arrest was “preventable beyond reasonable doubt”
- back to the Police
- December 2013: CPS Special Crime Division:
- "Having completed our review, we have concluded there is sufficient evidence and it is in the public interest for Dr Bawa-Garba, Sister Taylor and Staff Nurse Amaro to each face charges of gross negligence manslaughter.“
Dr Hadiza Bawa-Garba: Trial
- 4 November 2015: Nottingham Crown Court (Dr B-G working for > 4 years)
- “Expert” Paediatrician (PICU): “barn door obvious sepsis” -? read the NCEPOD report (2015)
- “ .. any competent doctor …” -? read the Trust investigation report (6 / 23 / 79) – posters for other doctors
- convicted of GNM
- 2 year suspended sentence
- 8 December 2016: refused leave to appeal (post Sellu appeal: “truly exceptionally bad”)
- R v Bawa-Garba (Hadiza) [2016] EWCA Crim 1841. Sir Brian Leveson P
- 13 June 2017: MPTS: GMC asked for erasure
- 12 months suspension
- insight, remediation, circumstances, no impairment of FTP (working > 4 years)
Enter the GMC ….
- 25 January 2018
- Court of Appeal allows GMCs appeal to “strike her off”
- explosion of concern
- toxic fear …
- international interest
- 26 January: crowdfunding
JH → Williams Review
GMC → Dame Clare Marx Review
GMC commissioned Review of GNM / CH
22 February 2018: GMC commissions Dame Clare Marx Review
- Working Group: 6 “medics”, 3 legal (inc CPS), 2 lay / patient reps
- ToR: review process of investigation of unexpected deaths
- application of the law (NB: excluded calling for change in the law)
- 4 Home Countries
- written responses (>750)
- workshops (>200 attendees), oral evidence (20 organisations), interviews (40)
- commissioned research (“public confidence in the profession”) + BAME
- Scottish “Task + Finish” group (law is different)
30 July: Privy Council appoints Dame Clare Marx as Chair of GMC Council
- LH takes over as Chair (re-named “Independent Review of GNM / CH”)
https://www.gmc-uk.org/ (^) 6 June 2019
(D Day celebrations, Donald Trump in London, Tory leadership campaign ..)
- 29 recommendations (each stage of events after an unexpected death): 77 pages
- Local investigations into patient safety incidents
- Expert reports and expert witnesses
- GMC
- Relationship with the profession
- Equality, diversity and inclusion (BAME concerns)
- Policies and processes
- Families and healthcare staff (NQB)
- System scrutiny and assurance (CQC)
- Coroner and Procurator Fiscal (Chief Coroner)
- Police (early independent advice) and CPS (more transparency)
- Reflective practice (? legal protection)
- Support for doctors (including Coroner’s Court; return to work plan; MDO cover)
Independent Review of GNM / CH published 6 June 2019
A “Just Culture”
- Expert Advisory Group (led to HSIB cf AAIB)
- A shared set of values in which healthcare professionals trust the process of patient safety investigation and are assured that any actions, omissions or decisions that reflect the conduct of a reasonable person under the same circumstances will not be subject to inappropriate or punitive sanctions.
- not “no blame” (1990s): “Learn not blame”
- James (“Swiss cheese”) Reason (2004): culpable and non-culpable unsafe acts
- James Titcombe: conscious disregard of a substantial and unjustified risk
- Alan Merry and Alex McCall-Smith: slips (errors) vs violations (conscious disregard …)
- Berwick report 2013 (post mid Staffs): “A Promise to Learn – a Commitment to Act” -? change in the law: Law Commission 1996
- fair to patients / families and fair to staff
- accountability and learning
