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Jeremy Hunt to strip GMC of right to appeal own fitness-to-practise tribunal

The GMC will no longer be able to appeal decisions made by its own tribunal regarding fitness-to-practise decisions, health secretary Jeremy Hunt has announced.

This is one of a number of measures the Department of Health and Social Care will instate following its ‘rapid review’ into medical gross negligence manslaughter launched after the controversial Bawa-Garba ruling in January.

But, in a move criticised by the GMC as well as the BMA, he has stopped short of offering legal protection to stop courts requesting doctors’ written reflections.

Without offering more detail, Mr Hunt also announced that GPs, alongside ambulance trusts, ‘will be the next focus for reviewing deaths to help understand and tackle patient safety issues’.

And he said ‘every single death’ within the NHS will now be scrutinised by medical examiners or coroners.

He is also launching a new programme under which hospital doctors will receive confidential data on their own clinical results and how they compare nationally ‘to support them to learn and improve’. This will initially be for consultants in general surgery, paediatric surgery and urology.

The recommendations, which come as Pulse exclusively revealed that the GMC has launched appeals against its own tribunal 23 times in less than a year, follows the conclusion of the review led by surgeon Professor Sir Norman Williams.

His report has recommended:

  • The removal of the GMC’s power to appeal the outcomes of their tribunals. This change would mean decisions by the Medical Practitioners’ Tribunal can only be appealed by the Professional Standards Authority.
  • Healthcare professionals’ personal case notes – known as reflective material – will not be able to be requested by regulators when investigating fitness to practice. This change will help ensure healthcare professionals aren’t afraid to use their notes for open, honest reflection and how they could improve patient care.
  • Developing a clearer understanding of where the bar is set for gross negligence manslaughter in healthcare, so that healthcare professionals are reassured this type of criminal sanction only applies to cases of very poor performance, rather than honest mistakes.
  • Improve the processes involved in healthcare professionals providing expert opinion in criminal and regulatory cases.

But the GMC pointed out that the recommendations come as it has already said it would never request a doctor’s written reflections as part of a fitness-to-practise investigation.

And it criticised the health secretary for not offering protection for doctors so that their reflections could not be requested by a court during a gross negligence manslaughter case.

A Pulse survey of nearly 700 GPs, carried out in April, revealed that over half (52%) had ‘stopped or adapted’ their appraisal reflections in the wake of the Bawa-Garba case, which has sparked wideranging fear among health professionals.

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.’

Professor Williams said: ‘The recommendations support a just and learning culture in healthcare, leading to improved patient safety. A clearer understanding of the bar for gross negligence manslaughter in law should lead to fewer criminal investigations which are limited to just those rare cases where an individual’s performance is so “truly exceptionally bad” that it requires a criminal sanction.

‘This clarity together with an understanding by the investigatory authorities as to the complexity of modern healthcare in which the individual operates should help to dispel the real fear felt by healthcare professionals who are concerned that in the well-intentioned discharge of their duty they may be subject to criminal or regulatory processes.’

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 given the case remains before the courts. 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.

‘We believe that a culture of learning applies to the GMC as much as to doctors, and we will reflect on the Review’s observations.’

BMA chair Dr Chaand Nagpaul said: ‘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, which would foster an open environment to apply systemic analysis to adverse events to improve patient safety.

‘The BMA has long-opposed the right of the GMC to appeal fitness-to-practise decisions. We know that doctors going through this process find it stressful enough, in many cases leading to anxiety and depression, without the added worry that any decisions made by the MPTS can be overridden by the GMC taking the case to a higher court. Therefore, we are glad that to hear the secretary of state announce that the regulator will no longer have this right. Removing this right brings arrangements for doctors in line with that of other healthcare professionals, where this responsibility rests with the Professional Standards Authority.’

In March this year, Pulse revealed that seven doctors had been struck off the medical register against the advice of the MPTS, including Dr Hadiza Bawa-Garba.

What Jeremy Hunt says he will change in light of the Bawa-Garba case

  • ‘Stronger support to help doctors and nurses learn from mistakes.’
  • ‘Every single death to be scrutinised by medical examiners or coroners.’
  • ‘GMC no longer able to appeal Medical Practitioners’ Tribunal rulings.’
  • ‘New programme offering doctors confidential data on their results and how they compare nationally to support learning and improvement.’
  • ‘GPs and ambulance trusts will be the next focus for reviewing deaths to help understand and tackle patient safety issues.’

Source: Department of Health and Social Care