In April 2018, ASGBI’s prepared a position statement which was endorsed formally by all three British Surgical Royal Colleges, and then submitted to the Williams review. ASGBI was subsequently invited to prepare a submission for the Marx review, commissioned by the GMC, which is now being led by Leslie Hamilton.

In preparing the ASGBI response to the questions posed by this review, we were very pleased to have had the support of ASGBI members who replied to the questionnaire sent out in July, and your views were very useful in helping us to formulate our response to the GMC.

Our response is available in full to members, but the key points we have made in response to this review on behalf of ASGBI are as follows:

What factors turn a mistake resulting in a death into a criminal act?

ASGBI consider that death should only be regarded as the consequence of a criminal act by an individual doctor when that concerns:

  1. The deliberate omission or commission of an act with the intent to harm or kill (in which case criminal law would be engaged in the usual manner, as for an ordinary member of the public).
  2. An act undertaken in the delivery of healthcare, which:
    a)    Fell short of responsible professional practice so as to engage liability in clinical negligence, AND
    b)    The doctor demonstrated indifference to an obvious risk to the patient’s life, the doctor was (or should have been) aware of that risk, yet they exposed the patient to it for no accepted medical benefit, AND THERE WERE NO
    c)    significant mitigating factors, such as the doctor was working in circumstances that substantially impaired their ability to provide adequate care, or lacked the experience or capacity to deliver the treatment in question.

ASGBI consider that a genuine error, occurring during the delivery of medical care, should not be considered a criminal act. With regard to gross negligence manslaughter, we believe the current legal position, set out by Lord Mackay, in 1994, is fundamentally flawed. This noted that “whether having regard to the risk of death involved, the conduct of the defendant convicted of gross negligence manslaughter is so bad in all the circumstances as to amount in their judgment to a criminal act or omission, is supremely a jury question”. ASGBI believe that this is a flawed argument, because of its circularity (i.e. the fact that a jury considers a criminal act has been committed makes it a criminal act). ASGBI also take the view that the highly technical complexities of many of the clinical scenarios in which gross negligence manslaughter is alleged to have occurred is likely to make these issues unsuitable for a jury decision.

What factors turn that criminal act into manslaughter or culpable homicide?

It is ASGBI’s view that a deliberate act of omission or commission, with intent to harm or kill constitutes a criminal act. A genuine mistake should not be considered a criminal act unless it not only engaged liability in clinical negligence (i.e. fell short of the relevant professional standards) but there was also clear risk to the patient’s life, clear indifference on the part of the doctor concerned to the risk of that act to the patient’s life, and the patient was exposed to that risk for no proven medical benefit. In ASGBI’s view the key factors, relate not to the death of the patient, but to the allegations of criminality relating to the circumstances in which that death has occurred (see above).

Do you think that the current arrangements for reporting and investigating serious clinical incidents within healthcare settings are effective and fair? If not, what is wrong and how might they be improved?

ASGBI members report widespread concerns about disciplinary actions which may arise from patient safety investigations. They believe that there is currently a focus on blaming individual clinicians, because these are seen as “easy” targets, and because there are no robust mechanisms for identifying systemic or corporate failings, and for holding the management of the relevant organizations directly accountable when these failings result in death.

ASGBI believe that, when resource, training and education shortfalls within an organization result in incidents which lead to avoidable death, greater emphasis should be placed on the Corporate Manslaughter (2007) to address organizational liability in criminal law.

ASGBI also support the following additional approaches, which will enhance opportunities for learning and improvement :

  •  Prioritizing serious incidents that require full investigation and developing alternative methods for managing and learning from other types of incident
  • Routinely involving families in investigations
  • Engaging and supporting staff involved in the incident and investigation proces
  • Using skilled analysis to move the focus of investigation from the acts or omissions of staff, to identifying the underlying causes of the incident
  • Using human factors principles to develop solutions that reduce the risk of the same incidents recurring.

The GMC has a statutory duty to: promote and maintain public confidence in the medical profession, and promote and maintain proper professional standards and conduct for doctors. What factors do you think the GMC should balance when trying to fulfil both these duties where there have been mistakes that are ‘truly, exceptionally bad’ or behaviour/rule violations resulting in serious harm or death?

ASGBI understands the GMC’s statutory duty but believe that decisions taken by the GMC should not only take into account the performance of the doctor but also reflect the circumstances that the doctor is working in. ASGBI take the view that the GMC is not responsible for regulating other aspects of the healthcare system and that the role of the GMC should be confined to those cases in which individual and isolated actions of doctors expose the public to harm or bring the profession into disrepute.

ASGBI believe that its ability to maintain public confidence in the medical profession is undermined (in public eyes) by its receipt of financial support by the profession itself and that the GMC should not be funded by subscriptions by doctors but, like most other regulatory bodies, by general taxation.

Questionnaire: written submissions to inform Dame Clare Marx’s review of gross negligence manslaughter and culpable homicide

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