The government’s rapid review into how gross negligence manslaughter (GNM) is applied in a healthcare setting, being led by Professor Sir Norman Williams, is crucial and timely.
The Medical Protection Society (MPS) has long been concerned about what appears to be the criminalisation of healthcare professionals. The strength of feeling over the Dr Bawa-Garba case and its potential impact on an open and learning culture in healthcare has now been acknowledged, and we hope the opportunity to learn lessons and scrutinise the current environment is fully utilised through this rapid review.
The review presents an opportunity to explore change in a number of areas – these include looking at reforms to the law that is applied in GNM cases in healthcare, how investigations involving healthcare professionals accused of GNM are approached, and how we can rebuild confidence in an open, transparent and learning environment.
In our response we have set out recommendations on all of these key areas, and we have also set out some steps to address some of the concerns about how the GMC handles GNM cases. After all, this review is largely the result of the action the GMC took in appealing the Medical Practitioners Tribunal Service decision to suspend, rather than erase, Dr Bawa-Garba from the medical register. An action the High Court subsequently ruled in favour of the regulator, resulting in an unprecedented level of fear and debate across the profession.
In making its case, the GMC argued that the medical practitioners tribunal service (MPTS) had gone behind Dr Bawa-Garba’s conviction for GNM when it took the decision not to erase her from the medical register due to her failings in the care of Jack Adcock. It said her erasure was necessary to maintain public confidence in the medical profession.
First, we should take a step back and look at how the GMC was able to appeal the tribunal’s decision in the first place. The challenge was brought following their recently acquired right to appeal - a power which we opposed on the basis that it creates an unnecessary and unjust duplication of the Professional Standards Authority’s (PSA) function. GMC investigations are long and stressful for the doctor concerned and both organisations having a right of appeal prolongs this.
We believe there is now an even greater sense of urgency to address the anomaly of both the GMC and PSA having the same right of appeal - a situation which only applies to doctors as none of the other healthcare regulators have their own right of appeal. In our response to Professor Sir Norman Williams’ rapid review, we call for Section 40A of the Medical Act 1983 to be repealed, meaning the GMC loses its right to appeal tribunal decisions, and this power rests solely with the PSA.
Interestingly, while the GMC has said that it had no choice but to appeal the tribunal’s decision in the Dr Bawa-Garba case, the PSA takes a different view. In documents released under a Freedom of Information request, it concluded that the GMC’s argument as to why it had to appeal the case ‘appeared without merit given the established case law’. It went on to say that ‘it appears that the GMC is seeking to create a line of case law which establishes a distinction in how the courts approach appeals by a regulator and a registrant.’
A further area of concern is around the GMC’s proposal that there should be a presumption of erasure following conviction of ‘serious crimes’. It consulted on these proposals in 2011 and recently called on the government to give them this power in their submission to the Department of Health and Social Care (DHSC) consultation on reforms to professional regulation. The argument being that some crimes are so serious that surely any doctor convicted of them in a criminal court should be struck off without the GMC having to hold a hearing to reach this determination.
While it has not yet been made clear whether such a rule would apply to GNM, it would be of significant concern if it were to become the expected norm that any doctor convicted of GNM will necessarily be erased from the medical register. Such convictions do not in themselves demonstrate whether systems failures and misfortune played a role or whether or not the doctor has shown they are capable of remediation.
Fitness to practise
We have set out our opposition to the GMC’s proposal in our own response to the DHSC consultation, and in our response to the rapid review have called on the government to confirm publicly, as a matter of urgency, that the GMC will not be granted these powers.
Ultimately, the courts serve a different purpose to the tribunal. The courts dispense justice, including punishment. The tribunal’s role is to assess the doctor’s fitness to practise and if needed issue a sanction in order to protect the public and/or the reputation of the profession. We believe the tribunal rather than the court is best placed to make decisions about a doctor’s fitness to practise.
In coming to a decision on sanction, it is necessary for the tribunal to make a judgment taking into account what is sufficient for the protection of the public. Panel members have training and expertise appropriate to their role, can consider a much broader range of evidence than the court, and can take full account of all the circumstances of a case. This includes information relevant to systems failures, patient safety and the capacity to remediate.
The tribunal’s ability to fulfil this important and distinctive function must not be restricted or undermined. As part of the DHSC consultation on reforms to professional regulation, the governments of the UK should review how the role and powers of the Tribunal can be better defined in legislation.
The question of how the tribunal can be given further operational independence from the GMC must also be explored as part of this process.
- Dr Pallavi Bradshaw is senior medicolegal adviser at the Medical Protection Society