As the first stage of the DAUK’s new campaign, Learn Not Blame, DAUK has responded to a rapid policy review into the use of gross negligence manslaughter in England and Wales. The DAUK is of the firm belief that the current application of GNM is a barrier to achieving a culture of openness and learning in the NHS. In our opinion, it is imperative that lessons are learnt from the case of Dr Hadiza Bawa-Garba, and that no doctor or healthcare professional should ever be scapegoated for system failures within an NHS at breaking point.
Our recommendations are:
1. A higher bar for the CPS to consider pursuing a prosecution for GNM.
2. The law on gross negligence manslaughter (GNM) be urgently reformed, with a legal test of GNM related to healthcare to include actions being “wilful or reckless”, and system failures taken into account as mitigation.
3. The creation of an independent investigative body, or significant strengthening of the Healthcare Safety Investigation Branch, whose first priority will be to explore the systemic failures that ultimately surround medical error.
4. Written reflections undertaken by doctors for the purposes of education or training be subject to legal privilege.
5. An amendment to Section 35A (1A) of the Medical Act 1983 that currently allows the General Medical Council (GMC) to compel doctors and organisations to disclose written reflections for Fitness to Practise hearings.
6. The repeal of Section 40A of the Medical Act that allows the GMC to appeal MPTS verdicts, which should be final.
7. Assurance from the Department of Health that Parliament will not grant the GMC the power of automatic erasure for the offence of GNM.