The patient lay slumped next to a pile of pills and a personally signed note reading: 'do not resuscitate me'. His breathing was agonal, his skin mottled, his pupils fixed, no pulse discernible. The attending doctor, in agreement with both paramedics and family member, decided to respect his wishes. Yet, this GP was placed under investigation for gross negligence manslaughter by the Crown Prosecution Service (CPS) for not resuscitating the patient, setting in motion a sequence of investigations, including by the coroner and the General Medical Council (GMC), that were triggered by the statement of one policeman at the scene.
All investigations and allegations were eventually dismissed but not until the GP had been through years of significant physical and mental stress. Still today, questions remain unanswered – in particular, concerning the actions of the police and the CPS.
Speaking under the condition of anonymity, the GP spoke to Medscape News UK, and said that now, over 7 years after that fateful home visit, she remained resolute that she made the correct clinical decisions at the time.
"It has all been very stressful for me. What was behind this case? What was driving this potential prosecution? And throughout, the patient, the family and their concerns were completely forgotten in the pursuit of so-called justice," she pointed out.
There are ramifications for other innocent doctors in their daily practice. "I was a GP doing a home visit, a daily duty of a doctor working in primary care in the UK, yet I was facing a conviction," she explained. "I became acutely aware of how exposed and vulnerable GPs are on home visits. "She said she remains "shocked and appalled at how the system has pursued a medical professional for a gross negligence manslaughter conviction".
"What has become of the medical profession and the freedom to practise safely in the UK as a fully qualified medical professional?," she asked.
A 'Worsening Blame Culture' in Health Care
"This was an absolutely extraordinary case," said Jenny Vaughan, OBE, a consultant neurologist who co-leads the 'Learn not Blame' UK-wide initiative from the Doctors Association UK (DAUK) that advocates learning after medical errors to prevent future errors through systems reform, rather than blaming individual doctors for unintentional mistakes.
Dr Vaughan received an OBE in the recent King's New Year’s honours for her contribution towards enabling a more 'Just Culture' in healthcare. She led the team which launched the successful appeal against the conviction of consultant surgeon, Mr David Sellu, FRCS (2014-2016). She was also part of the team which brought both national and international attention to the plight of, and reinstatement to the medical register of paediatrician, Dr Hadiza Bawa-Garba.
There is an ongoing battle against a toxic culture of blame, Dr Vaughan told Medscape News UK. "Can you imagine the effect of that misguided investigation on a young GP who thought she was doing her best for her patient?"
The case highlights the predicament of honest, hard-working, and caring medical staff battling against a backdrop of systems failures. "Both David and Hadiza were from a minority ethnic background, and both were very trusting of people and of the process. They turned out to have very little chance in the system," she added.
"There is no doubt in my mind that the child Hadiza and her whole team were looking after should have got better care that day. The hospital, too, should have provided a much safer environment, yet it got away scot-free and Hadiza and the nurse were solely blamed. This does not improve our approach to patient safety in any way," emphasised Dr Vaughan.
The paradox is that these mistakes can happen when the healthcare professional involved is trying their best to do the right thing. "There is a type of personality that largely trusts the management process, and believes in the best in people, yet they can get taken in by the system," she explained. "We should never have a process where you could be more likely to get convicted – or even go through extensive investigation – because of certain personality traits.
"Medical manslaughter is the tip of the iceberg of what is a worsening blame culture in healthcare," stressed Dr Vaughan. "We've tackled the extreme end of it, as today these convictions are much rarer, but in doing so, we've revealed a Pandora's box demonstrating the multiple jeopardy from numerous investigations that one clinician can be subject to after just one error. In addition, the offence of 'willful neglect' concerns me because it seems, less well-defined."
She adds that she is particularly concerned for doctors of black and ethnic minority origin, especially those who are international medical graduates as investigations and sanctions can be more punitive.
"Healthcare workers making 'honest' errors should not be criminalised when there is a large back-drop of systemic failure which the law does not seem to treat in an even-handed way," said Dr Vaughan. "I'm not talking about [Harold] Shipman-type characters, I'm talking about any doctor or nurse under pressure with a backdrop of systems failures, who does the best they can, but unfortunately makes honest mistakes."
The 'Vulnerability' Clinicians Feel in Everyday Practice
Peter McDonald, FRCS,is a consultant general surgeon at Northwest London University Hospitals Trust. He authored a book called "A doctor's aim: A memoir of a London surgeon" last year, after nearly 50 years working in the NHS, and is passionate about the plight of individual doctors taking the blame for mostly systemic failure.
Between operations recently, Mr McDonald asked his medical colleagues whether they felt more protected in their roles now, in light of the high-profile manslaughter cases of recent years. "They said a resounding 'no', and that they still felt as fearful as they did previously, and because it has been highlighted, then possibly they felt worse."
Next, he asked his colleagues if they felt more supported by management now in the event of an error, than previously. "They said that they didn't feel management had the guts to do that, adding that management like to blame before they like to understand and learn.
"I take a very dim view of management in the NHS, and certainly when it comes to sticking their neck out to take the heat of the doctors that work with them"” Mr McDonald told Medscape News UK.
Lastly, Mr McDonald asked his colleagues if they felt the GMC was "the warm, motherly organisation that they purported to be, having sent us messages about how they wanted to support us". Once again, Mr McDonald reported, "the answer was a resounding, 'no', adding that they 'didn’t feel the GMC had or will change its approach'".
Mr McDonald, who was a non-executive director of the MDDUS, a medical defence organisation, stood by Mr Sellu, raising funds, convening meetings and publishing commentary. He agrees that personality is implicated and that, in the system as it stands, doctors need to fight back.
"Many overseas doctors are from cultures that are often less aggressive in the face of work-related problems," Mr McDonald noted.
"If a manager comes to me and says something silly like, 'Do this patient and not that one', and the latter is severely ill and urgent and the other is relatively less so, I say, 'Would you like to call the GMC or shall I?', and this always makes the management back down,” he said, recounting a story he told his junior doctors. "I have the legal responsibility and the legal jeopardy, and they need to be reminded of this at certain times."
The Pressure of an Investigation
Data show that healthcare professionals have 2.5 to 4.0 times the rate of suicide of the general population. "This is more likely while under professional investigation," says Mr McDonald.
Another study of 114 doctors who died of any cause undergoing investigation by the GMC between 2005 and 2013, found that 28 of them took their own lives, so one quarter of the deaths were due to suicide.
The pressure of an investigation, or even the threat of one, creates a working environment in which practising clinicians feel undermined and under-supported, and is driving medical professionals away, he adds. "What really worries me is, bit by bit, good people will start to look elsewhere for their careers, because the lack of support in the long run will undermine the ability to take risk on behalf of their patients. The goodwill of the medical profession will be lost, and it is happening already."
Dr Vaughan, through the 'Learn not Blame' campaign, is calling for a fairer assessment of systemic failure rather than scapegoating individual practitioners and in the meantime, wreaking havoc with their lives. "These are awful investigations and, while you may be cleared eventually, meanwhile you're supposed to carry on with your life and practise as a doctor," she says.
'They Tried to Throw the Book at Me'
The GP from the case above of the man who left the 'do not resuscitate me' note said she felt cornered by investigations from every quarter. "It was just [the patient's] choice at the end of the day. As soon as I entered that bedroom, I got in trouble with the law," she reflected.
Three weeks after the incident, a police officer requested an interview under caution about the death. "The next thing I was told the CPS were part of the decision to investigate me for gross negligence manslaughter," she explained. "The police and CPS were pursuing this, not the family.
She recalled that during the taped interview, "my heart sank further when the police asked, 'Did you have a financial interest in the patient dying?' A financial interest? What? Is this actually happening? I could have vomited.
"I was going about the job I had been trained to do and this non-clinically trained person was able to question my motives in this way. They tried to throw the book at me. I was guilty until proven innocent," she remembered, and added that the experience aged her physically and mentally.
Being Investigated for Manslaughter is 'Crushing'
Oliver Quick is professor of health law and policy at the University of Bristol Law School. He has reviewed multiple cases of manslaughter by gross negligence brought by the CPS.
Medical manslaughter cases are very rare – around one prosecution per year, he said. "They get disproportionate amounts of attention and cause lots of fear."
Between 1995-2018, 47 healthcare professionals were prosecuted for gross negligence manslaughter that led to the deaths of 38 patients, 23 clinicians were convicted, with four prosecutions overturned on appeal.
During 2016-17, four manslaughter cases involving healthcare professionals reached the Court of Appeal, and the level of concern among healthcare professionals led to the government conducting a formal policy review into gross negligence manslaughter in healthcare. This was published in 2018, chaired by Professor Sir Norman Williams, and a more comprehensive review, by Leslie Hamilton, commissioned by the GMC in 2019.
But, beyond the prosecutions, Prof Quick stressed that there are around 25 or 30 investigations per year. "When there are preventable deaths and serious failures of care, we shouldn't be surprised if there's investigation into that," he noted.
However, he added that, "To be investigated for manslaughter is crushing. How do you go to work? How do you practice medicine when the police are gathering evidence? The stress of such investigations can cause harm to clinicians and their families. I think anything that can reduce the delay in conducting investigations is welcome for all concerned."
Conflicts of Interest: Dr Vaughan is campaign co-lead for Learn not Blame at Doctors Association UK. She is currently writing a book on medical manslaughter. Mr McDonald was a non-executive director of the Medical and Dental Indemnity Protection Service UK. Professor Quick jointly conducted a review of CPS cases of medical manslaughter.