The Health and Social Care Committee will be holding an evidence session to consider the implications of the law on gross negligence manslaughter and professional regulation but have failed to accept any submissions from any practicing hospital doctor.
DAUK has replied to a letter from Charlie Massey dated 13 September. We welcome the apology offered by Mr Massey and the opportunity to meet. DAUK has, however, expressed concern in a number of areas, including the news that the GMC is continuing to appeal MPTS verdicts, and call on the GMC to cease doing so urgently.
DAUK Chair Dr Samantha Batt-Rawden, who sat in court during the Dr Hadiza Bawa-Garba appeal tells GPonline: ‘Particularly concerning to all of us has been the GMC’s line of argument. To an observer, it seems the crux of their argument is that system failures were not relevant in Hadiza’s case, and should not have been taken into account by the MPTS when determining her level of culpability and her sanction.’
Learn Not Blame is DAUK’s exciting new campaign, which will be launched over the coming months. We aim to empower individual doctors to be part of a transformational change process working towards a revolution in the culture of the NHS. The campaign has been born out of a growing awareness amongst clinicians of how a toxic mix of defensiveness and concern for reputation management above all else can lead to blame-seeking culture. This is bad for doctors and worse still for patient safety.
Today The Doctors' Association UK submitted written evidence to the Draft Health Service Safety Investigations Bill inquiry. The Bill will see the the current HSIB, under NHS Improvement, become an independent body.
In the submission DAUK welcomes "the creation of an independent body to investigate serious incidents in healthcare" and "the development of a culture that focuses on systemic learning from errors, rather than attributing individual blame".
However, DAUK expresses concern regarding the following areas:
- the power that the Bill grants to the Secretary of State for Health to appoint Chair of HSSIB, remove non-executive board members and veto the Chief Investigator.
- the process by which HSSIB will be able to accredit Trusts to carry our their own "safe space" investigations which DAUK describes as an "obvious, and enormous conflict of interest" in allowing Trusts to investigate themselves.
- prohibitions on protected disclosure; in the context of the case of Dr Bawa-Garba of and of Dr Chris Day, there must be confidence in the "safe space" to allow staff to speak freely.
- the fines of up to £20,000 for not submitting evidence to HSSIB on time. DAUK questions this and propose that fines be used to fund Human Factors training for healthcare professionals
- the Bill only applies to NHS-commissioned services. DAUK feels that the private sector should be subject to the same rigorous and independent investigative processes.
Today The Doctors’ Association UK has written to Dame Clare Marx to express our concern regarding the make up of the working group for the GMC review into gross negligence manslaughter. The GMC has previously has stated that this will be an independent review, commissioned by the GMC. They go on state “The working group comprises a wide range of perspectives, experience and expertise, with membership drawn from across the medical profession, including doctors in training, the legal system, employers and patients.”
The Doctors’ Association UK was disappointed to see a lack of junior doctors currently in training on the review panel into gross negligence manslaughter, which was launched in response to the conviction of Dr Bawa-Garba, a junior doctor and a trainee.
We have therefore petitioned Dame Clare to consider expanding her working group to include more junior doctors in currently training, to represent the viewpoint of those working in similar conditions to Dr Bawa-Garba.
We look forward to engaging in the review in due course.
As the first stage of the DAUK's new campaign, Learn Not Blame, DAUK has responded to a rapid policy review into the use of gross negligence manslaughter in England and Wales. The DAUK is of the firm belief that the current application of GNM is a barrier to achieving a culture of openness and learning in the NHS. In our opinion, it is imperative that lessons are learnt from the case of Dr Hadiza Bawa-Garba, and that no doctor or healthcare professional should ever be scapegoated for system failures within an NHS at breaking point.
Our recommendations are:
1. A higher bar for the CPS to consider pursuing a prosecution for GNM.
2. The law on gross negligence manslaughter (GNM) be urgently reformed, with a legal test of GNM related to healthcare to include actions being “wilful or reckless”, and system failures taken into account as mitigation.
3. The creation of an independent investigative body, or significant strengthening of the Healthcare Safety Investigation Branch, whose first priority will be to explore the systemic failures that ultimately surround medical error.
4. Written reflections undertaken by doctors for the purposes of education or training be subject to legal privilege.
5. An amendment to Section 35A (1A) of the Medical Act 1983 that currently allows the General Medical Council (GMC) to compel doctors and organisations to disclose written reflections for Fitness to Practise hearings.
6. The repeal of Section 40A of the Medical Act that allows the GMC to appeal MPTS verdicts, which should be final.
7. Assurance from the Department of Health that Parliament will not grant the GMC the power of automatic erasure for the offence of GNM.
Our full submission can be found here:
The Doctors’ Association have launched their new campaign: Learn, Not Blame. In the wake of the case of Dr Hadiza Bawa-Garba the DAUK feel the medical profession has a unique opportunity to radically reform the way medical error is approached in the UK. Currently the culture in the NHS is one of fear and blame, and the DAUK feel strongly that this must be reformed to one of openness and learning. DAUK will be submitting it’s own evidence to the Williams review on gross negligence manslaughter in the first instance. However, Learn, Not Blame has a wider remit in highlighting the impact of systemic failures endemic in the NHS on patient safety and in campaigning for move from a blame culture to a just culture. As part of the campaign DAUK will be speaking out on staffing ratios, physician fatigue and poor rota design, IT failures amongst other safey issues.
You can read about the DAUK’s submission to the Williams review below:
Currently, the culture in the NHS is one of fear and blame, and not one of openness and learning. Doctors are afraid to admit to their errors and near misses, with the fear that unilateral and disproportionate action may be taken by the GMC, and now that they may be subject to criminal proceedings for simply making an honest mistake. Whistleblowers are actively discouraged from speaking up. Investigations within the NHS are notoriously opaque and lengthy for relatives, and the culture of pinning the blame on one healthcare professional leads to the loss of crucial opportunities to learn from the systemic failures that always surround medical error.
In Learn, Not Blame DAUK call for radical reform of the way medical error is approached in the UK. The DAUK feels strongly that there should be widespread use of an independent investigative body, similar to the Air Accidents Investigation Branch, or markedly increased use of the HSIB, with findings being disseminated nationwide, so the NHS can learn from mistakes and near misses as a whole.
It is crucial that an environment of psychological safety exists in the NHS, and that doctors feel able to speak up, reflect and learn from their mistakes. The medical profession have found themselves in the unprecedented situation where doctors now feel too wary to reflect on paper after a reflective document of Dr Hadiza Bawa-Garba’s was fed into her criminal trial and used against her in court. Doctors urgently need a safe space to debrief and reflect.
Doctors that wilfully harm should be punished to the full extent of the law. Thankfully this is incredibly rare. The DAUK feel that the use of gross negligence manslaughter in cases where a doctor has simply been trying their best to save a life under immense pressure is grossly inappropriate and disproportionate. In a system stretched to breaking point, doctors are increasingly finding themselves doing the jobs of several doctors at once, and many are concerned that working under this pressure, mistakes are inevitable. Yet currently, working in a failing system appears to be no mitigation when an error is made.
Following Dr Hadiza Bawa-Garba’s conviction the GMC’s tribunal panel, the MPTS explored the multiple systemic failures that surrounded her case, and did not recommend she be erased from the medical register, citing numerous mitigating factors. The GMC subsequently appealed this decision and took Dr Bawa-Garba to court to have her struck off. This action, and the apparent unwillingness of the GMC to acknowledge and address the system failures of the case, prompted widespread anger within the medical profession. The GMC have recently responded to a Department of Health consultation on regulation and are now seeking the power of “automatic erasure”, wishing to bypass their own tribunal altogether. We feel strongly that a professional tribunal is best placed to unpick complex medical decisions and to judge professional competence in the context of widespread system failures.
The DAUK will be submitting our own evidence to the Williams review with the following proposals:
-the creation of an independent investigative body, or increased use of the HSIB, whose first priority will be to explore the systemic failures that ultimately surround medical error.
-legal privilege for written reflections.
-the repeal of the recent amendment to Section 35 1A of the the Medical Act 1983 that currently allows the GMC to compel doctors and organisations to disclose written reflections for Fitness to Practise hearings.
-the repeal of Section 40A of the Medical Act that allows the GMC to appeal MPTS verdicts.
-assurance from the Department of Health that Parliament will not grant the GMC the power of automatic erasure.
-a higher bar for the CPS to consider pursuing a prosecution for gross negligence manslaughter.
-that the law on gross negligence manslaughter be urgently reformed, the legal test of GNM to include actions being “wilful or reckless”, and that system failures be taken into account as mitigation in both criminal proceedings and Fitness to Practise Hearings.
The DAUK will be lobbying the BMA and the Royal Colleges to achieve this, as well as working alongside the MPS. The DAUK will also be launching their public campaign, My Honest Mistake in coming weeks.
Replying to a letter sent to the GMC on the 1st of March, Charlie Massey has today confirmed that the GMC will not be seeking the power of automatic erasure in cases where a doctor has been convicted of manslaughter. In his letter Massey states “I can assure you that we are not seeking to extend our powers to make provision for automatic or unilateral erasure of a doctor convicted of GNM”. The full reply from Charlie Massey can be read below.
Dr Samantha Batt-Rawden, Chair of The Doctors’ Association UK, has written to Charlie Massey, Chief Executive of the GMC, to express overwhelming concern regarding the handling of the case of Dr Hadiza Bawa-Garba in a letter signed by over 4500 doctors.
In their letter, The DAUK call on the GMC to retract their response to a recent Department of Health consultation, in which the GMC were seeking the power to unilaterally erase doctors from the register without a tribunal. The DAUK also calls for Massey to clarify the process by which the GMC chooses which MPTS verdicts to appeal and what processes are in place to address institutional bias in considering sanctions of Black and Minority Ethnic doctors. The letter received over 4500 signatures in 72 hours, and has attracted widespread support from MPs. The letter read below or found in full here.
Dear Mr Massey,
We are writing to you to express our overwhelming concern regarding the General Medical Council’s (GMC) response to the recent Department of Health consultation on professional regulation, in addition to the GMC’s handling of the Bawa-Garba case.
Currently, all doctors have the right to a fair trial and professional tribunal when things go wrong, to explore the context in which errors occur and determine a doctor’s fitness to practise. It has come to our attention that the GMC has proposed to deny doctors this right, and to extend the powers granted to it by parliament in the Medical Act 1983 by seeking to unilaterally erase doctors from the register. Although we understand you are seeking to do this in the case where a doctor has been convicted of a “serious criminal offence” we are dismayed to learn that this includes gross negligence manslaughter.
The Bawa-Garba case saw a paediatric trainee with a previously unblemished record be convicted of gross negligence manslaughter despite the systemic failures that likely contributed to the tragic death of Jack Adcock. The case, and the subsequent action of the GMC, has caused widespread concern internationally, throughout the medical profession and amongst patient safety experts. The implications are such that the case has prompted Jeremy Hunt, Secretary of State, to announce an urgent review into the application of gross negligence manslaughter in healthcare.
The Medical Practitioners Tribunal Service (MPTS) did not recommend that Dr Bawa-Garba be erased from the register, citing numerous mitigating factors and taking into account the systemic failures of the case. The GMC inexplicably chose to appeal this in court. In a recent letter to Sarah Wollaston, you referred to your own “clear and published guidance” detailing the process of appealing MPT verdicts, but a recent Freedom of Information request revealed that you, as Chief Executive, appear to have made this decision to appeal to the court to have Bawa-Garba erased from the register unilaterally.
It has now come to light that upon reviewing the case, the GMC’s regulator, the Professional Standards Authority (PSA), has criticised this action finding that the argument that the GMC had “no choice” but to appeal the MPTS decision was “incorrect” and “without merit” given established case law. Indeed, the PSA found that the MPTS “considered all relevant principles and applied the case law appropriately”.
We are therefore shocked that you, knowing full well the results of this review, which was conducted last year but disappointingly not published by the GMC, stated in recent weeks “the tribunal had essentially placed itself above the law in reaching that decision”. Your statements appear at best, misguided, and at worst, disingenuous. This is more concerning given that your own regulator, the PSA, had found that “the Panel was not seeking to go behind the conviction or minimizing it”. You further stated “it is a very difficult argument to win that doctors should somehow be above the law or the law operate differently for doctors”. We, as doctors, do not believe we are above the law and are affronted that you would suggest so. The PSA in their review, however, state “it appears the GMC is seeking to create a line of case law which establishes a distinction in how the courts approach appeals by a regulator”.
Given the above we are firmly opposed to any such extension of powers being granted to the GMC and would like to remind you of the following:
• In Cohen v GMC (2008) the High Court established that the GMC must focus on doctors’ current and future fitness to practise
• A number of court rulings have further clarified that the role of the GMC is to determine whether the doctor poses a future risk, and not to discipline them for past conduct
• The GMC states that a secondary function of a fitness to practise hearing is “providing an opportunity to rehabilitate and remediate doctors whose fitness to practise is impaired”
• Further, the GMC states that any action taken must be proportionate and to act otherwise would be “inappropriate and unlawful”
• The GMC also states that any sanction issued to a doctor must be the minimum sanction necessary to protect patients
• In reviewing the action taken by the GMC in the Bawa-Garba case, the Professional Standards Agency pointed out to you that the Supreme Court (a higher court than that to which the GMC appealed for Dr Bawa-Garba’s erasure) in 2016 had previously established that professional tribunals were better placed than courts to determine professional competence
We call on you to do the following:
• Withdraw your response to the Government’s consultation with immediate effect
• Abandon attempts to push for automatic and unilateral erasure and commit to the right of all doctors being allowed a fair hearing
• Acknowledge that inclusion of Gross Negligence Manslaughter as a “serious crime” for which automatic erasure would be pursued is highly inappropriate in the context of widespread concern regarding how this is currently applied, and pending a review of the use of Gross Negligence Manslaughter in the United Kingdom
• Clarify the process by which the GMC chooses to appeal certain outcomes of the MPTS and how this applied in the case of Dr Bawa-Garba
• Clarify what processes are in place to ensure institutional bias against Black and Minority Ethnic doctors does not play a part when considering which MPTS decisions to appeal
We look forward to your timely response.
Dr Samantha Batt-Rawden MBChB MRCEM