On 11 June 2018 the Department for Health and Social Care published the report of the Williams review into 'gross negligence manslaughter in healthcare'. The report opens with a letter from Professor Sir Williams (Chair of the review panel) to the Secretary of State for Health and Social Care, in which he acknowledges that:
"Those of us who have never experienced the unexpected death of a family member or friend receiving healthcare cannot fully appreciate the enormous sense of loss and grief that will be inevitable...What families and loved ones want in such circumstances is transparency, a thorough investigation, an exploration of what went wrong and reassurance that measures are put in place to prevent similar tragedies."
From the perspective of a clinical negligence solicitor, this seems to summarise the hopes our clients fairly accurately. However, to what extent do the recommendations made in the Williams report reflect these aims? More importantly, what reforms will be made to try and achieve them?
Understanding the law
The Williams review does not appraise the law relating to gross negligence manslaughter, in the healthcare context or otherwise. However, its report recommends that the existing law be explained more clearly to healthcare professionals and to others, in the form of an explanatory statement prepared with the help of the Crown Prosecution Service and others.
The role of coroners
Coroners are independent judicial officers and are obliged to investigate deaths in certain circumstances (find out more in our briefing, What is an inquest?). The Williams review recommends that the Chief Coroner should update the guidance available to coroners regarding gross negligence manslaughter and that coroners should consider this guidance when assessing whether or not to refer a death for criminal investigation.
Serious incident investigations
NHS organisations will sometimes hold internal investigations into a death, with a view to clarifying how the death came about and learning lessons about how to avoid similar events. However, there is little consistency in when and how such investigations take place (for an example, see Southern Health NHS Foundation Trust criticised in independent review of deaths).
The Williams review acknowledges that investigations of this kind are crucially important in providing quality of care and communication with patients and relatives, but that the NHS has proven resistant to change. The report recommends that:
- investigations should be expertly overseen and independently-led, wherever appropriate
- a board member at each NHS organisation should be accountable for ensuring that the Serious Incident Framework (created by NHS Improvement) is used in all such investigations
- the Care Quality Commission (CQC) should consider the effectiveness of such investigations as part of its inspection programme
- the proposed Healthcare Safety Investigation Branch, a national body which has been proposed to carry out certain safety investigations should be brought into being as soon as possible
Perhaps the most eye-catching aspect of the Secretary of State's response to the Williams review so far has been his pledge to introduce a system of medical examiners. In fact, this change has been on the horizon for years, having been included in the Coroners and Justice Act 2009.
There is a lack of clarity currently about how a system of medical examiners would work in practice, but it appears that examiners may be tasked with scrutinising the causes of death given by treating doctors and ensuring that appropriate cases are reported to coroners. It has been suggested that medical examiners should not only consider medical records, but also interview the deceased's next of kin and carry out some examination of the body.
The Chief Coroner has given guarded support to the notion of medical examiners. However, he identified serious concerns about the resources which would be made available and whether these would be sufficient to make the system work. He also queried whether there will be insufficient numbers of appropriately qualified, experienced and independent healthcare professionals willing and able to act as medical examiners.
Another question raised by the Chief Coroner is how the system of medical examiners will be funded. It has been suggested that the families or friends of the person who has died may have to pay fees to cover the costs.
How can we help?
This briefing note explores the implications of the Williams review for those considering a clinical negligence claim in relation to a death or who are involved in an inquest. If you would like to discuss either of these areas then please contact Lucy Wilton, in the personal injury and clinical negligence team.