The Committee held an evidence session on 16/10/18 to consider the implications for patient safety of the application of the law on gross negligence manslaughter and professional regulation in such cases.
They had two panels of experts. Professor Sir Norman Williams summarised the recommendations of his review and Sir Robert Francis clarified the law. They also heard from a healthcare ethicist, Dr Suzanne Shale and Professor Pali Hungin, member the current GNM/CH review set up by the General Medical Council (GMC).
Charles Massey took part in the second panel along with the Professional Standards Authority (PSA), The Nursing and Midwifery Council (NMC) and Keith Conradi from the Healthcare Safety Investigation Branch (HSIB). DAUK, Dr David Nicholl and more recently GP Survival have been calling upon the Health and Social Care Committee to conduct a public inquiry into Hadiza’s case since February. DAUK has corresponded with Dr Sarah Wollaston asking the HSC to question Charlie Massey over his decision to appeal the MPTS tribunal decision in the case of Dr Bawa-Garba now overturned, as it was legally flawed, by the Appeal Court. DAUK was invited to submit a written briefing for the HSC alongside a briefing from the BMA, now published on the Parliament website.
Here is the broadcast on Parliament TV. It’s a couple of hours long but well worth listening to all the way through.
There were a number of key discussion points. All were highly relevant to us on the frontline.
GNM law appears to be flawed in healthcare
Sir Robert Francis stated that the law on gross negligence manslaughter (GNM) is flawed because, unlike other areas of law, it asks a jury to decide what is or is not a criminal offence. In other types of crime, e.g. theft, the jury are told what the elements of the offence are. In GNM the risk is that the jury have to default to applying a retrospective judgment as to the "seriousness " of what happened and this can give rise to inconsistencies in the healthcare field because of the usual complexities which provide the backdrop to a clinical case, including the role of others and hospital systems.
The problems of the system not being held to account or being subject to a very limited investigation were highlighted. We all know that many of our trusts have unsafe systems because there are now persistent problems due the effects of years of under-funding. These included low /unsafe staffing levels. Most of us are working in trusts where systems failures have become the ‘organisational normal’ and this was pointed out by the panel. One HSC MP concluded that one solution could be that ‘doctors have to [simply] learn not to incriminate themselves!’
The panel heard that many factors contribute to individuals being singled out when things go wrong in healthcare. The poor quality of local investigations which may feed into the coroners /crown court makes it more likely that an individual could be targeted. Very often the staff who conduct these investigations are influenced by ‘hierarchy effects’ such as work force shortage and conflicts of loyalty to colleagues and the Trust. There is also a big problem with NHS trusts investigating their own serious incidents and a lack of independence. The panel told the HSC that some trusts have got it right but overall the SUI framework can be improved. Other trusts could investigation each other according to standards set by the HSIB as the current variation must be addressed.
It was stated that reflective notes are a powerful way of gaining insight into events but it has to be done in a safe reporting environment. Somewhat naively the regulators stated that their legal advice was that reflections happen after event so don't establish criminality. However, this is very simplistic and we know that in Dr Bawa-Garba’s case that they were used and not in a way which benefited Hadiza. The HSIB raised eyebrows by admitting that they record interviews in their investigations but that some trusts don't allow them to this even within a safe space (16:34:50). The GMC have previously confirmed that although they will not ask for notes of doctors’ reflective practice, recorded reflections are not subject to legal protection.
The Dr Bawa-Garba case
Charles Massey was then questioned about the Bawa-Garba case by various panel members, but most especially by Rosie Cooper MP. They wanted to know what the basis was for the GMC decision to appeal the MPTS verdict. Massey recounted the usual story, claiming legal advice forced them down this route. I have some concerns that when certain organisations ask for legal advice they usually know what they are going to get from the person they instruct or am I being unfair? I suspect not. Mr Ivan Hare QC is a well known and commonly instructed QC by the GMC. As in both medicine and the law, there is usually a known range of opinions on any given issue. I believe the GMC knew where they wanted to go with this. We now know that this legal advice was found to be incorrect by the Appeal Court.
Charles Massey admitted the Bawa-Garba verdict has affected confidence in its decision-making processes. He still says he was right to do what he did. He pointed out that he felt they were showing that "actions speak louder than words “by recommending Human Factors training for expert witnesses and instigating an independent GNM/CH review and that it was the job of the regulator to make "tough decisions."
At present the PSA is reviewing GMC systems but the GMC intend to keep using its right of appeal until legislation is enacted to stop them. At present there is no cross-talk between the PSA and the GMC about appeal decisions. However, at the HSC panel, the chair, Dr Sarah Wollaston (16:18 onwards), MP asked directly “Why don’t you consult with the PSA before going forward? Sir Norman Williams has been unequivocal in his recommendations so why don’t you discuss with the PSA and not appeal unless the PSA agrees? The PSA agreed with this approach and stated clearly “The right of appeal should still lie with the PSA as it does with all the other regulators.”
Rosie Cooper MP then threw a zinger at Charlie “What is stopping you doing something that is patently sensible?” and “How hard is it to JUST DO?" she finished with as her further riposte to his pleading of needing to “consult with my counsel.” DAUK fully agree with the criticism of the GMC by Health Select Committee when Rosie Cooper MP commented "the learning hasn't been that great really" (at 16:10:30). It seems that the HSC are certainly interested in Learn Not blame and holding those in authority very strongly to account.
Black and Minority Ethnic Issues (Jonny Mercer MP questioning)
There is a five times excess risk of being investigated by your regulator if you are a Black/ Minority Ethnic healthcare worker. It was the most damning statistic I heard at the Health Select Committee. Let’s remember that BME doctors and nurses who deliver about a third of our healthcare. If BME doc you have double the chances of being referred to the GMC or the NMC than your white colleagues. (BME 10% chance of referral to GMC vs. 5.5 % white). But 84% of these referrals are from employees which are far more likely to end up being investigated compared to the 16% referred from the public. So the overall risk is 5 times greater and this inequality is also seen at the NMC so affects nurses and midwives too. Mr Massey talked about the fact that the GMC want to understand why they receive an excess of referrals. They have asked an independent expert, Roger Kline to look into this. There is variation and we need to know which places are doing this right as we need to disseminate good practice. All regulators agreed on the need for a just culture in healthcare by way of conclusion to the one day enquiry.