On 11 June 2018 Professor Sir Norman Williams published his rapid policy review into gross negligence manslaughter (GNM) in the healthcare setting. Some, including the GMC, have said that the recommendations have not gone far enough; doctor's reflective documents remain unprotected from legal professional privilege.
However, it is recommended that the GMC and GOC, the only healthcare regulators out of nine which have the power to obtain reflective material, should have that power relaxed to exclude reflections. There is no such recommendation for clinical negligence claims, which is disappointing.
The good news is that the GMC lose their right to have a second bite of the cherry by appealing their own decisions (which has been in place since 2015). This has undermined doctors' trust in the GMC and has had a significant impact on doctors' willingness to engage with the GMC.
The review recognised that the MPTS who determines fitness to practise (FTP) hearings is a statutory sub-committee of the GMC, is funded by the GMC and is accountable to the GMC Council. The GMC is the only health regulator that has such a right of appeal. The call for high quality expert evidence is also welcomed. Interestingly, figures from the GMC show that only 54% of doctors appearing before an MPT hearing in 2016/2017 were represented, and only 34% at HCPC hearings in 2017/2018.
The MDDUS has called for compulsory non-claims cover in the light of this review. I agree that representation is greatly needed to assist in consistency of outcomes, particularly where an unrepresented registrant may be disadvantaged in the adversarial process, and all the more so where there is concern as to the quality of expert evidence.
I set out below my summary of the 10 recommendations made by the Williams review. This is a summary only; to read the full report click here.
1. An agreed and clear position on the law on GNM
A working group (comprising the CPS, coroner services, Treasury Counsel and MDOs) should be set up to set out a clear explanatory statement of the law on GNM. The DPP should produce or update guidance on GNM in light of the explanatory statement.
2. Improving assurance and consistency in the use of experts in GNM cases
The Academy of Royal Medical Colleges, working with regulators, should lead work to deliver high standards and training for medical expert witnesses, who should have relevant clinical experience and, ideally, still be in current clinical practice. Royal Colleges should support and encourage training and organisations should release staff when acting as an expert witness. Regulators should recognise acting as an expert as part of revalidation and CPD.
3. Consolidating expertise in gross negligee manslaughter in healthcare settings in support of investigations
The Chief Coroner should consider revising guidance on GNM in light of the working group's explanatory statement. Police forces should consolidate their expertise on GNM through a virtual specialist unit which will support senior investigation officers (SIOs) by making available the experience of previous GNM cases in the early stages of an investigation. Advice to SIOs should be updated to reflect the explanatory statement. A new memorandum of understanding (MoU) should be agreed between relevant bodies including the college of policing, CPS, CQC, HSE and HSIB, to establish a common understanding of the respective roles and responsibilities of the organisations involved, in particular, the role of systemic and human factors in the provision of healthcare. The MoU should be disseminated to promote greater understanding of the legal issues among healthcare professionals to develop a "just culture" in healthcare which recognises both systemic and individual accountability.
4. Improving the quality of local investigations
The CQC should be informed of all GNM referrals to CPS, so that they can consider if parallel investigation is required to determine the role of systemic and human factors and identify any changes which might be needed. There must be a thorough local investigation of all deaths. The CQC should consider the effectiveness of such investigations as part of its inspection. Proposals for the establishment of HSIB as an Executive Non-Departmental Public Body should be implemented at the earliest opportunity.
5. Reflective material
Royal Colleges should review and, if necessary, amend guidance relating to reflections, stressing the value of reflective practice such that there is a consistent approach across all healthcare professional groups. The CPS and GMC were clear that they would be unlikely to use reflective material in criminal or fitness to practise investigations. Regulators should clarify their approach to reflective material. The GMC and GOC, who have the power to require information, should have this power modified to exclude reflective material.
6. Right of appeal against fitness to practise decisions
The PSA should retain its right to appeal a decision of a FTP panel. The duplicate power of the GMC to appeal decisions of the MPTS should be removed. Ahead of the legislative change, the GMC should review its processes for deciding when to appeal.
7. Consistency of fitness to practise decision across professional regulators
The PSA should review the outcomes of FTP cases relating to similar incidents and circumstances considered by different regulators and, if appropriate, recommend changes to ensure greater consistency.
8. Diversity in FTP proceedings
Regulators should ensure that FTP panel members have received appropriate equality and diversity training.
9. Legal representation in FTP proceedings
The PSA should review whether the outcome of FTP procedures is affected by the availability of legal representation. This should be considered alongside broader proposals for the reform of professional regulation which seeks to establish a less adversarial process thought the use of undertakings and consensual disposal.
10. Support for patients and families during FTP proceedings
Regulators should review and, where necessary, improve the support they provide to patients and family members.
The GMC said it was “disappointed” that the review had not accepted its recommendation that doctors’ reflective notes should be given legal protection in court proceedings.