Newsletters Professional Discipline 14th Jun 2018

It Takes One to Quango- Sick to Death of Regulation in the Healthcare Sector?

Professor Sir Norman Williams’ rapid policy review of gross negligence manslaughter in healthcare was published on 11th June, and sets out a number of recommendations for reform in cases of suspected gross negligence manslaughter, and indeed for medical regulation generally. The recommendations largely reflect common sense, and are to be welcomed, but there is far more work to be done. An in-depth review of the entire system is required.

The key recommendations of the Williams review are as follows:

(i) Agreed guidance on the definition of gross negligence manslaughter to be used across all investigatory and prosecutorial bodies

(ii) More cooperation between different bodies at the investigation stage, including parallel CQC and police investigations

(iii) Consideration of system and human factors to be considered at an early stage

(iv) More support and involvement for bereaved families

(v) Removal of the GMC’s anomalous right to appeal fitness to practise decision made by the MPTS

(vi) Exclusion of reflective material from the GMC and GOC’s power to require registrants to provide material for fitness to practise cases

(vii) Concerns about the over representation of BAME healthcare professionals to be investigated further

(viii) A PSA review of the impact on legal representation, or lack thereof, in regulatory proceedings

It is not possible to comment on all of these in this article. The removal of the GMC’s right to appeal will eradicate one of the many inconsistencies between the nine healthcare regulators. That is surely to be welcomed, with the caveat that many more inconsistencies exist, and some are far more significant.

If the aim of the recommendation on reflective material is to ensure careful reflection and learning is not inhibited by the fear of use of that material in regulatory proceedings, as indeed is stated in Professor Williams’ report, then the recommendation surely misses the mark. The GMC have never used their power to require a practitioner to provide information in respect of reflective material. It is far more likely that such material is provided to the regulator by an investigating trust or employee. The recommendation does nothing to restrict this.

More fundamentally, this review was set up, and has consequently acted as, a sticking plaster in an area of particularly high public concern. The problems in healthcare regulation are more fundamental. The Department of Health & Social Care’s recent consultation on regulation began “The UK’s model of professional regulation for healthcare professionals has become complex and outdated” – one cannot imagine this met with much opposition from consultees. Practitioners face an overlapping maze of different regulatory and investigatory regimes. The strain and expense involved in negotiating one hearing after another can be enormous.

If we take a GP who makes a mistake resulting in the death of a patient as our example. There will follow an internal inquiry in the Practice, and perhaps a local disciplinary hearing. A negative outcome may be subject to litigation before the Employment Tribunal.

There is bound to be an inquest. The doctor will need to carefully consider how she participates in those proceedings given the potential outcomes. She and her legal advisors, if she has them, will be mindful of the Coroner’s ability to make a finding of neglect, or a narrative verdict commenting on lesser failings. An inquest may also result in a requirement for the doctor to self-report to the GMC.

If the mistake is particularly serious, a police investigation will also take place, including an interview under caution. That may or may not result in a criminal charge and trial for manslaughter.

Even if that trial results in an acquittal, the doctor may face regulatory proceedings before the MPTS. The outcome of such a hearing will be subject to an appeal by the Professional Standards Authority and currently by the GMC.

Supposing she achieves a favourable outcome before the MPTS, the GP may nonetheless be removed from the Primary Health List by NHS England, leaving her unable to practice for an NHS provider. Such a decision is subject to appeal before the First-Tier Tribunal (Primary Health Lists).

Add to that the possibility of a CQC investigation or inspection of the Practice. The bereaved family may bring civil proceedings, or make a complaint resulting in a Parliamentary and Health Service Ombudsman investigation (recently subject to trenchant criticism in Miller v Health Service Commissioner for England [2018] EWCA Civ 144). Where safeguarding concerns are raised, the Disclosure and Barring service may also take action which effectively ends a practitioner’s ability to practise.

Let us imagine that the doctor eventually manages to maintain her registration, NHS listing, DBS check, and her job. How motivated is she going to be to continue in her given profession?

We may be able to rely on the continued goodwill and conscientiousness of the professions in this regard. But is the proliferation of proceedings outlined above justified? Granted, different proceedings have different purposes. Nonetheless, the degree of overlap is surely untenable. Is there any need, where a regulator has fully investigated and adjudicated upon a doctor’s fitness to practise, for the First-Tier Tribunal to undertake what is largely the same exercise simply in relation to publically funded work?

Some options which are perhaps worthy of consideration:

(i) Consideration of the necessity for an NHS Primary Health List

(ii) Consideration of the necessity for the Ombudsman

(iii) A res judicata type rule to ensure finality of a regulator’s consideration of a professional’s risk to the public when before other bodies

(iv) Rules or undertakings on the part of regulators regarding the fairness of using reflective statements and answers to questions given in other proceedings; in this respect it is questionable whether the Williams review goes far enough

(v) Use of a specialist first-tier tribunal for all appeals relating to healthcare regulation

This article has not even begun to address the wisdom behind having 9 different healthcare regulators for the medical professions, each with unique rules and procedures. That is a topic for another day. What is clear is that the current system is crying out for reform – root and branch.

Lewis MacDonald





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