Blake Morgan’s Professional Regulatory bulletin

The Williams review into gross negligence manslaughter in healthcare was published on 11 June 2018.

This review is important because it considers issues faced by all regulators and those who are regulated and is not limited to allegations of gross negligence misconduct (GNM). Although that was the trigger for the Government’s request of Professor Sir Norman Williams to conduct his rapid policy review, the review itself considers and makes recommendations in relation to a number of issues including the use of experts in regulatory cases generally and a need for professional regulators to work together to achieve a more consistent approach.

In this analysis of the recommendations, we examine those which we think may be the ones which regulators will need to consider most carefully both in relation to GNM but more generally.

Background

The circumstances leading up to the review are well documented. The decision of the GMC to appeal a sanction of suspension in a case involving a doctor convicted of GNM and the subsequent replacement by the High Court of that sanction with one of erasure attracted criticism in many quarters, particularly and perhaps unsurprisingly in the medical profession itself. Some of that debate may not have been well informed but, rightly or wrongly, it appeared to have a particular adverse and unintended effect upon the view of medical professionals towards reflective learning and the ways in which such reflection might, in their minds, be used against them.

It appeared to some that the way in which the regulator approached the case might discourage, rather than encourage, transparency and owning up to mistakes when they happen. On the other hand, the GMC would and did argue that the appeal was appropriate in order for them to achieve their overriding objectives of protection of the public and maintaining confidence in the medical profession.

As they approached their work it seems that the panel members conducting the review determined that it was necessary to consider some wider issues to provide a context for their recommendations.

Summary of recommendations

1. Having considered the leading cases of R v Adomako and R v Rose, the Panel concluded that Court of Appeal had “clarified the test for gross negligence manslaughter and that the bar for conviction is set appropriately high”. They did however, recommend that a working group be set up to set out a clear explanation of the law on GNM, and that this group should include relevant stakeholders, some of whom should be required to produce or update guidance on GNM in order to promote a consistent understanding of it.

We welcome this recommendation. Further clarity as to the circumstances in which GNM might (or would not) be appropriately charged is a good thing. It will be good for practitioners, those affected by mistakes by healthcare professionals and by those who regulate the professions.

2. The Panel heard evidence regarding the quality of experts used in GNM cases and by regulators generally. All of us who work in regulation understand the important role experts play at every stage of the process. Their reports will often determine whether an Interim Order is applied for, whether an allegation is referred for a hearing and should assist a panel in determining whether or not an allegation is well founded and amounts to misconduct. Before some regulatory panels, expert evidence is even adduced to assist a panel in determining whether or not a particular registrant has remediated concerns regarding their fitness to practise.

The importance, therefore, of having experts who are properly trained and who understand their role cannot be underestimated. The review panel makes a number of recommendations to assure the quality and consistency of experts.

3. A number of cases have recently highlighted a concern that individuals are being “prosecuted” for mistakes when, in reality, those mistakes are the consequences of organisational and systemic failure. One of the recommendations in this review is that where a suspected GNM case in a health care setting is referred to the CPS, the CQC must be informed so that it can consider whether or not to carry out a parallel investigation of the healthcare provider.

4. The review panel noted that although there was no suggestion that either the GMC or GOC would use the powers they had to request reflective material as part of their own investigation, this was not generally understood by the medical and healthcare professions and concluded that “misunderstanding of this power has had a detrimental effect on the willingness of doctors to reflect on their practice”. Amongst other observations, the panel recommends that the GMC and GOC should have the power to request such reflective material removed. The panel did not think it appropriate or necessary to afford such material the status of legal privilege. In its response to this recommendation, the GMC has responded by stating that in its view the best way to create a learning culture is to legally protect reflective notes and that by indicating its intention to accept this recommendation the Government is missing an opportunity to protect doctors.

5. Practitioners are most likely aware of the Government’s consultation on proposals to stream line and to some extent harmonise the regulation of healthcare professionals. Many will remember the work done by the Law Commission whose recommendations were not at that time acted on by the Government. The review panel made a number of recommendations to improve consistency of decisions by professional regulators. This includes a recommendation that the PSA should review how the impact on public confidence is assessed in reaching FTP decisions and to develop guidance to support good, consistent, decision making.

Although the proposal that the GMC lose its right to appeal decisions of the MPTS has attracted the headlines of some commentators, our view is that a number of the other recommendations, some of which we have considered above, are likely to have a more far reaching impact on the development of regulation of those who work in the medical and healthcare sectors.

A copy of the full report can be found here.