Independent Review of Gross Negligence Manslaughter – An Insider’s Perspective

This week saw the publication of the much anticipated, GMC commissioned, report into gross negligence manslaughter prosecutions and any subsequent GMC action.

The antipathy between the GMC and the professional bodies in the aftermath of the Dr Bawa-Garba case is well documented and much of the coverage of this review has been based upon how the GMC can go about regaining the confidence of their own Registrants.

However, the report also makes a number of interesting practical recommendations as to how criminal prosecutions and subsequent GMC investigations can be better managed, not least to avoid prosecutions being inappropriately pursued.

Expert Evidence

Concerns were raised by a number of organisations as to the quality of expert evidence obtained by the Police and Crown in the course of their enquiries.  One concern is that such reports do not make clear where the expert opinion sits within “the spectrum of possible expert opinion” in their specialty.  We have experience of experts whose opinion seems to be based chiefly on what they do in the course of their medical practice, rather than displaying the ability to consider properly what is reasonable practice, even if it is something that they would not do themselves.

Recommendation 11 of the report is that expert witnesses should specifically be required to confirm the basis upon which they are competent to provide their expert opinion and where their view sits within the spectrum of possible opinion and that they should try to calibrate their reports to assess the Practitioner’s conduct with reference to the standards that should properly have been expected.   Whilst one might have thought such requirements already exist, it is often surprising to find that expert opinions obtained by the Police or CPS seem to wholly disregard such fundamental principles of providing professional expert evidence.  It seems that this is often due to the Police’s lack of knowledge of where or how to obtain a credible expert, and perhaps the financial constraints placed upon them when doing so.  When particular medical expertise is sought, it also seems to create inordinate delays with such instructions appearing to have to be approved by the SOCA in many instances.

Consolidated Expertise

Another helpful recommendation is that there should be one “virtual specialist unit” set up within the Police so as to consolidate relevant expertise.   As we know from experience Police officers undertake investigations of medical or dental professionals, in relation to sexual offences, not just gross negligence manslaughter, without ever having undertaken such an investigation before.   Consolidating expertise would also be appropriate in relation to other criminal investigations relating to medical and dental practitioners.  There is a specialist team within the Organised Crime Command of the Metropolitan Police whose role is almost solely to investigate thefts by NHS employees, particularly relating to misuse of drugs often in relation to underlying health difficulties.  We have found their sympathetic approach to the investigations refreshing and their understanding of the associated concerns and the potential vulnerability of the suspect medical practitioner was welcome.

An additional recommendation is that there should be early advice reports obtained by the Police via “the High Level RO (Responsible Officer) for the region”.  This is not something recommended to be part of any criminal prosecution, but rather an initial filter to potentially assist the Police in understanding whether there is any basis at all on which a GNM prosecution could proceed.  Of course, such an opinion should not be obtained from a local practitioner, but if there can be a functioning system whereby an early opinion is obtained from a suitably experienced and knowledgeable senior practitioner within that speciality, then the discontinuance of any investigation for which there would never be any real prospect of conviction would surely benefit the Police, medical professionals and families alike.  However, the report’s suggestion that providing such advice “should be part of the doctor’s professional duty rather than a commercial arrangement”, might be somewhat optimistic.

The report should be required reading for those of us acting in this area and there are of course many other recommendations relating to the GMC itself.  However, a number of the recommendations relating to the Police investigations are worth implementing.

Conclusion

It is not so many years since the Law Commission’s report in relation to expert evidence in criminal proceedings, but this more recent review highlights the importance of prosecuting authorities ensuring that their experts are suitably knowledgeable and experienced, as well as able to provide an impartial, reasonable opinion in relation to another’s professional practice, not least because of the catastrophic impact that a critical opinion can have for a practitioner’s career, livelihood and indeed liberty.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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