The government has welcomed the review findings, but the GMC said it was 'surprised' at the focus on its power of appeal - and hit out over the review's failure to offer legal protection for doctors' reflective notes. Despite the removal of the power of appeal from the GMC, the review says, this power will be retained by the Professional Standards Authority.
BMA leaders welcomed plans to strip the GMC of its power of appeal, but also criticised the review's failure to offer legal protection to reflective notes - warning that patient safety could only be guaranteed if doctors felt able to 'report errors and reflect on their own mistakes openly, without the fear of these reflections being used against them at a later stage'.
The review chaired by health and social care secretary Jeremy Hunt's clinical adviser Professor Sir Norman Williams called for an overhaul of guidance for 'investigatory and prosecutorial bodies'. The revamp should clarify how gross negligence manslaughter (GNM) laws should apply in healthcare, to ensure that criminal investigations focus on 'rare cases where an individual's performance is so "truly exceptionally bad" that it requires a criminal sanction'.
Despite ignoring appeals for legal protection for doctors' reflective notes, the review recommends that the GMC should no longer have the power to request them - although the regulator has said consistently that it will never ask for or use this information against a doctor.
Addressing one of the central concerns for doctors thrown up by the Bawa-Garba case, it said that consideration must be given to 'systemic issues and human factors' alongside doctors' individual actions in cases that lead to a patient's death, 'ensuring that the context of an incident is explored, understood and taken into account'.
The review calls for further investigation of 'concerns about the over-representation of black, asian and minority ethnic healthcare professionals in fitness to practise cases' so that they can be 'understood and addressed, and calls for more support for bereaved families.
Responding to the review, Mr Hunt said: 'When something goes tragically wrong in healthcare, the best apology to grieving families is to guarantee that no-one will experience that same heartache again. I was deeply concerned about the unintended chilling effect on clinicians’ ability to learn from mistakes following recent court rulings, and the actions from this authoritative review will help us promise them that the NHS will support them to learn rather than seek to blame.
'Combined with our medical examiners, learning from deaths and clinical improvement programme, these measures are the next phase in our patient safety reforms, supporting the NHS to seize every opportunity to learn vital lessons when tragic errors occur.'
BMA chair Dr Chaand Nagpaul said: 'When mistakes occur in the medical environment, the outcome can be tragic. If we, as doctors, and the wider health service are to learn from these mistakes and to prevent such tragedies occurring, the NHS needs a dramatic shift away from the current culture of blame.
'Doctors must feel able to report errors and reflect on their own mistakes openly, without the fear of these reflections being used against them at a later stage. Only then can true improvements to patient safety be made. While the assurance that regulators will no longer be able to request reflective material during their investigations is a welcome step, we still believe they should be given full legal protection.'
He welcomed plans to bring the GMC in line with other professional regulators by removing its power of appeal against fitness to practise decisions, and said the BMA would be 'monitoring closely' the impact of recommendations to tackle the 'inappropriate criminalisation of medical error'.
'We welcome the sentiment that there must be a more consistent approach regarding prosecution for gross negligence manslaughter. Safely delivered patient care is a doctor’s number one concern, but it can only be guaranteed if employers, regulators and the government recognise the need for a learning culture and address the system pressures on doctors’ ability to provide care to patients.'
GMC chair Professor Sir Terence Stephenson said: ‘We are disappointed by the review’s recommendations. We wholeheartedly support the secretary of state’s desire to create a learning culture. The best way to achieve that is to legally protect doctors’ reflective notes. We are concerned that, in accepting these recommendations, the government is missing an opportunity to protect all doctors by not going ahead with a recommendation to enact this legal protection.
‘We are also surprised that the review has focused on the GMC’s right of appeal. If the recommendation to remove this is pursued, it will significantly reduce our ability to protect patients.
‘Our appeals have been upheld in 16 out of 18 cases heard by the courts. We believe our actions have provided greater public safety and maintained public confidence in the profession through these rulings, all but one of which involved sexual misconduct or dishonesty.'