GNM0001

 

 

Written evidence from the Doctors’ Association UK

 

10th October 2018

 

 

Dear Dr Wollaston,

 

Thank you for the opportunity to provide this written submission to your evidence session. It is vital that we create a culture where patient safety is prioritised, and one where healthcare professionals are able to speak out about honest mistakes and errors. We have stressed the importance of this issue in our correspondence to you since February 2018.

 

The case of Dr Hadiza Bawa-Garba left doctors feeling fearful and angry. They were fearful that in similar conditions they too would be liable to make honest mistakes which could subsequently be criminalised. And they were angry at the actions of the regulator of the medical profession, the General Medical Council (GMC).

 

It is our concern that the potential for criminalisation of individuals for honest mistakes and error engenders a culture of fear and cover up, rather than a just culture where learning and improvement can take place and families get the answers they deserve. We are also concerned about the additional strain that such fear places on the mental health and wellbeing of doctors.

 

Our submission focuses on four key areas where doctors feel they need clarity or reform, namely:

 

We hope that you find our submission useful in guiding your oral questions of witnesses.

 

Yours Sincerely,

 

Dr Samantha Batt-Rawden

Chair, The Doctors’ Association UK

 

 

 

 

1. Background

 

1.1 The Doctors’ Association UK (DAUK) is a new campaigning and lobbying group, representing doctors of all disciplines, drawn together in the wake of the case of Dr Bawa-Garba. We were established in February from the original team running an online forum of over 29,000 doctors. DAUK is now an independent constituted body, incorporated as a private company limited by guarantee, with a large scale, grassroots social media presence. We have recently launched paid membership and our numbers are growing daily.

 

1.2 In addition to writing to the Health and Social Care Committee about our concerns over the past few months we have written to the Secretary of State for Health and Social Care, made submissions to the Williams Review, the GMC commissioned review into Gross Negligence Manslaughter and Culpable Homicide and the Draft Health Service Safety Investigations Bill inquiry. Our submissions have highlighted our concerns with the use of gross negligence manslaughter prosecutions of healthcare professionals, with the actions of the General Medical Council, and also around the quality and fairness of investigations conducted within the NHS.

 

1.3 Dr Bawa-Garba’s conviction and subsequent persecution by the GMC has had a profound effect on the medical profession. Doctors are concerned that individual front-line staff are easy targets for blame when things go wrong, with NHS organisations bearing little corporate accountability for the working environments they create. Doctors have become fearful they will face a criminal conviction and lose their license to practice medicine, for honest errors made whilst working under pressure, effectively taking the blame for system failures. There are already significant concerns regarding the adverse effects of work pressures and the risk of complaints on doctors’ mental health and wellbeing; the fears of prosecution raised by this case are only adding to this.

 

1.4 Doctors also feel powerless or are afraid to raise patient safety concerns which relate to working practices and staffing. The aggressive pursuit of cases such as those of Dr Chris Day and Dr Ed Jesudason by NHS organisations serves to actively discourage potential whistleblowers. Many doctors report problems accessing and conflicts of interest within the Freedom to Speak Up Guardian system. The resultant culture jeopardises the opportunity for the NHS as a whole to learn when things go wrong, let alone being able to anticipate and change before things go wrong.

 

1.5 A survey of nearly 1000 doctors, conducted by our Law and Policy Officer, Dr Jenny Vaughan, in her capacity as co-founder of Manslaughter and Healthcare, compared attitudes of doctors in 2016 and 2018. It found that doctors now report being less likely to admit to their errors and near misses. Nearly 90% of doctors admit to practising in a more “defensive style” where they are “inclined to do more tests or over prescribe”. Over 95% of doctors felt that this is likely to cause recruitment problems in high-risk specialties. Over 80% of doctors replied that the possibility of facing criminal charges for medical errors may affect their decision to continue working in the profession.

 

1.6 This submission focuses on four key areas where doctors feel they need clarity or reform including:

         Reform of the law on gross negligence manslaughter and its application

         The role of the regulator in judging fitness to practise

         The role of reflective practice

         The role of the Chief Executive of the GMC in Dr Bawa-Garba's case

 

2. Reform of the law and its application

 

2.1 It is our view that the law on GNM, and how it is currently applied in practice, is a stumbling block to much needed progress on achieving a just culture in the NHS.

 

2.2 Doctors are concerned that it seems easier for the criminal justice system to target individuals at the sharp end, with an inability to hold organisations and their executives to account for organisational or systemic failings (under the Corporate Manslaughter and Corporate Homicide Act 2007). In the Bawa-Garba case, the Trust’s own investigation concluded that there was no single root cause and that there were 70 recommendations of how the Trust could improve its workings to prevent such a situation occurring again. Yet only individuals were prosecuted over Jack Adcock’s death.

 

2.3 Doctors also remain concerned at the over-representation of Black and Minority Ethnic (BME) groups in convictions of gross negligence manslaughter relating to healthcare. This raises a question of whether there is unconscious or institutional bias in the criminal justice system in this regard.

 

2.4 The current arrangements for reporting and investigating serious clinical incidents within healthcare settings are not effective or fair. There is much too much variation in the decisions to prosecute and investigate by the Police and CPS. In addition, coroners need to be much more open to the swiss-cheese model of error and to understand that it is hardly ever the case that one or two people can be held culpable for a tragic death in healthcare. Some coroners appear to be more open to this concept than others. Guidelines and training are needed.

 

2.5 Serious untoward incident (SUI) investigations must be as independent as possible. When hospitals conduct investigations, there is too much variation in how they are done. Across the NHS and private healthcare system there is evidence that providers will single out individuals rather than be transparent about their own errors.

 

2.6 We welcomed the recommendations of the Williams’ Review and would ask the Health and Social Care Committee to seek assurances on the implementation of its recommendations. We would further ask the HSC to consider whether the balance between criminal prosecutions of individuals versus criminal prosecutions of organisations is correct. We would also encourage the HSC to probe the apparent racial bias of the criminal justice system with regard to prosecutions of gross negligence manslaughter in healthcare.

 

3. Judging fitness to practise following a gross negligence manslaughter conviction

 

3.1 When an individual is convicted of gross negligence manslaughter, there is a separate process followed to determine the individual’s fitness to practise, which takes place through the Medical Practitioners’ Tribunal (MPT). In Dr Bawa-Garba's case, the MPT decided that she was fit to practise with the sanction of a 12 month suspension. It was the decision of the GMC to pursue erasure of Dr Bawa-Garba through the courts that in particular led to such a degree of anger amongst the medical profession.

 

3.2 One of the key recommendations in DAUK’s written submission to the Williams Review was that the GMC lose the right to appeal the decisions of the MPT under Section 40A of the Medical Act 1983. This is a matter on which our grassroots base has made known their particular strength of feeling.

 

3.3 We therefore welcomed the recommendation of the Williams review that the GMC should lose this right of appeal. Indeed, the review panel noted that granting the GMC an appeal right in 2015 has had significant unwelcome and unintended consequences. It is our understanding that these recommendations were accepted by then Secretary of State for Health and Social Care, who appeared to share our concerns about impact of the actions of the GMC in this case.

 

3.4 We therefore greeted the recent news that the GMC has continued to appeal MPT judgements in court with alarm. Indeed, in recent weeks Lord Justice Bean urged that the GMC show “restraint”. Ahead of the legislative change needed to remove this right, the Williams Review also recommended that the GMC “should review its processes for deciding when to refer a decision to the MPTS so that it is transparent and understood by all parties and involves a group or panel decision, as opposed to lying solely with the Registrar”. This appears not to have occurred. We are concerned that should the GMC’s actions continue unchecked, that there will be a further breakdown in trust between the medical profession and its regulator.

 

3.5 We would ask the HSC to reaffirm that the GMC will lose their right of appeal of MPT judgements and confirm a timeframe for this process. We would further ask the HSC to press the GMC to accept the recommendations of the Williams Review and stop appealing MPT judgements.

 

4. Reflective practice

 

4.1 Reflective practice is a practice that should be undertaken by all doctors so learning can take place. For doctors in training, this often takes the form of written reflections as part of an e-portfolio. The GMC has maintained that Dr Bawa-Garba's e-portfolio and reflective notes were not used in the criminal trial. This is not strictly accurate, as a “training encounter form” was seen by the prosecution team and therefore fed into the criminal trial.

 

4.2 This has had a real impact on doctors’ willingness to reflect openly when things go wrong. In the survey conducted by Dr Jenny Vaughan, only 10% of doctors felt able to reflect openly in e-portfolio about unexpected outcomes or serious untoward incidents following the Dr Bawa-Garba case.

 

4.3 The Williams Review recommended that regulators, including the GMC, lose their power to request reflective practice material as part of Fitness to Practise investigations.

 

4.4 We would ask the HSC to consider the matter of reflective practice and its status. We would urge the HSC to seek a timetable for implementation of the recommendation of the Williams Review around removing the GMC’s power to request reflective practice material. We would further urge the HSC to consider whether they feel that legal privilege should be given to written reflections.

 

5. The role of the Chief Executive of the GMC in Dr Bawa-Garba's case

 

5.1 Doctors have particular concerns around the role of Charlie Massey, the Chief Executive of the GMC, in Dr Bawa-Garba's individual case.

 

5.2 In February 2018, we wrote to Mr Massey to express our concern over the GMC’s actions in the Bawa-Garba case, in a letter signed by over 4500 doctors. We have subsequently had further correspondence with him, but do not feel he has adequately answered doctors’ concerns about both the role of the GMC, and his individual role in the pursuit of Dr Bawa-Garba in the courts.

 

5.3 We note that your Committee has also had correspondence with Mr Massey regarding Dr Bawa-Garba's case. As you are aware, we have some concerns regarding statements Mr Massey has given in this correspondence, believing them to be misleading.

 

5.4 When asked to set out what considerations the GMC takes into account when deciding that an appeal against an MPTS decision is merited, and how those considerations applied in the case of Dr Bawa-Garba, Mr Massey directed your Committee to the GMC’s own “clear and published” guidance. However, it has since come to light, following a Freedom of Information request, that it was – seemingly unilaterally – the “Chief Executive who made the decision to appeal the determination reached by the Medical Practitioners Tribunal in June 2017 with regards to the case of Dr Hadiza Bawa-Garba.” We are concerned that Mr Massey’s previous statements to your Committee appear not to have given an accurate picture of the decision-making processes.

 

5.5 Furthermore, in his correspondence with you, Mr Massey implied that Dr Bawa-Garba’s e-portfolio or reflective notes were not used against her in court. While her e-portfolio did not form part of the formal evidence, it has become clear that a “training encounter form” was indeed seen by the prosecution team and therefore fed into the criminal trial. This report is intended to be used to reflect on significant events with one’s supervisor and certainly forms part of an e-portfolio. We therefore find Mr Massey’s statements to the Health and Social Care Committee to be misleading.

 

5.6 We would urge the HSC to probe Mr Massey specifically on his role in the Dr Bawa-Garba case, and seek a degree of reflection and remediation that is routinely expected of doctors, but appears so far to have been lacking in Mr Massey’s case.

 

6. Conclusion

 

6.1 It is clear to us that something has gone very wrong in the way that the criminal law is currently applied in healthcare with individuals most likely to face prosecution rather than organisations. It is also clear to us that our regulator, the GMC, cannot be trusted to take a balanced and non-punitive approach to doctors where serious harm has occurred in the context of widespread system failures.

 

6.2 DAUK believes that the present moment represents a unique and rare opportunity to learn valuable lessons from the outcome of this case. We were pleased that this one-off evidence session was announced by the Health and Social Care Committee. We hope that the HSC can use this opportunity to provide a robust challenge to those who have been involved in this significant breakdown of trust with the medical profession, and that progress can be made towards genuine improvement in patient safety.