The Hamilton review, commissioned by the General Medical Council, following a media storm when the GMC appealed the MPTS decision resulting in Dr Bawa-Garba beng struck off, has acknowledged that this led to a breakdown in relationships between the GMC and the doctors they regulate.
Leslie Hamilton conducted an in independent review of gross-negligence manslaughter (GNM) and culpable homicide (CH), but has ducked the question as to whether the law in England and Wales should be changed, notwithstanding that the report quotes Sir Robert Francis and Prof. Ian Kennedy who did think a change in the law is required. In Scotland, there is no GNM; the closest is CH where the elements of mens rea require total indifference to or reckless disregard of the potential dangers of the doctor's conduct. Of note, there have been no convictions of a doctor for CH in Scotland relating to the discharge of their medical duty.
Dr Bawa-Garba was convicted for gross negligence manslaughter in 2015 following the death of six-year-old Jack Adcock, who died in 2011. While Dr Bawa-Garba made numerous serious mistakes, a tribunal into her practice also highlighted widespread systemic issues on the day she was working. Dr Bawa-Garba would not have been convicted had Scottish law applied.
Although the Hamilton review has not called for a change in the law of GNM, it is nonetheless welcomed for its focus on how the systems, procedures and processes surrounding the criminal law and medical regulation are applied in practice and how they can be improved to support a more just and fair culture.
The report made a total of 29 recommendations for change.
Of note, Hamilton agreed with the Williams review that removal of right to double jeopardy; the GMC’s right to appeal MPTS decisions is removed. This is a welcome step which ought to be implemented without further delay.
It is also encouraging that systemic issues should be scrutinised in every GMC investigation, and that a decision to bring a clinical competence case to a MPTS hearing should be supported by 2 expert opinions.
In respect of reflective practice, use of a toolkit should support safety and learning whilst reducing the risk of being used in proceedings against them. The review calls for parliament and government to consider how reflections can be given legal protection.
Charlie Massey, Chief Exec. of the GMC acknowledges that: “Many doctors feel unfairly vulnerable to criminal and regulatory proceedings should they make a mistake which leads to a patient being harmed". The depth of this feeling has resulted in a breakdown in the relationship between many doctors and their regulator, the GMC. He added: “The report says we must rebuild trust with the profession, and we fully accept this challenge. Having reflected as an organisation, we are committed to acting on that".
“Many doctors feel unfairly vulnerable to criminal and regulatory proceedings should they make a mistake which leads to a patient being harmed. The depth of this feeling has resulted in a breakdown in the relationship between many doctors and their regulator, the GMC. The GMC must take urgent steps to repair that relationship so that it is better able to work with and support doctors in delivering a high standard of care for their patients.”