Thirteen healthcare organisations have repeated a call for the Government to deliver on a commitment to remove the General Medical Council’s (GMC) power to appeal fitness to practice decisions.

In a letter to Matt Hancock, Secretary of State for Health and Social Care, the Medical Protection Society urged the Government to use the forthcoming Health and Social Care Bill as an opportunity to remove the GMC’s ability to appeal such decisions made by the Medical Practitioners Tribunal Service (MPTS).

The letter – also signed by the British Medical Association (BMA) and the Royal College of General Practitioners (RCGP) – said that this would help to address the mistrust of the GMC amongst doctors and contribute to cultivating a culture of openness.

Removing the GMC’s right to appeal

In 2018, the Government accepted ‘in full’, the recommendations of the Williams review into gross negligence manslaughter in healthcare, which included removing the GMC’s right to appeal FTP decisions.

The review was set up to look at concerns among healthcare professionals that simple errors could result in prosecution for gross negligence manslaughter, following the case of Dr Hadiza Bawa-Garba.

It concluded that removing the GMC’s power would not reduce public protection, as the Professional Standards Authority (PSA) would retain a similar right to appeal.

A consultation document published by the Government in March 2021 outlined its recommitment to removing this power.

The Medical Protection Society said that data it obtained via FOI indicates the GMC has challenged at least 14 MPTS decisions since the start of 2018.

The letter to the Secretary of State said: ‘We were pleased to see the recent white paper confirm that the Government plans to consult further on its broader reform proposals with the aim that these be delivered through secondary legislation.

‘The forthcoming Health and Social Care Bill seems an excellent opportunity to amend the Medical Act 1983 by removing section 40A. We urge you to include such provisions in the Health and Care Bill and bring forward a timetable for reform.’

Pandemic highlighted high-pressure workplaces

‘Now more than ever, the regulator needs to be able to operate in a way that instils confidence amongst patients and doctors,’ said Professor Dame Jane Dacre, Medical Protection Society president.

‘The GMC’s power to appeal decisions made by the MPTS has led to fear across the medical profession and a lack of confidence in the GMC. It is also unnecessary as the PSA has the authority to appeal decisions. The GMC is the only UK health regulator that has such a right of appeal.’

While she welcomed the Government’s recommitment made in March this year, she flagged that it has been ‘almost three years’ since the review was published.

More recently, the Covid-19 pandemic has ‘sparked discussion about the extent to which individuals should be held to account when working in pressurised and extreme circumstances,’ she said.

‘Implementing this change as part of the forthcoming Health and Social Care Bill would give the profession confidence that their concerns and the recommendations of the Williams review are now being acted on,’ she commented.

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Thirteen healthcare organisations are calling on the government to follow through on its 2018 promise to strip the General Medical Council (GMC) of its power to appeal decisions made by the Medical Practitioners Tribunal Service (MPTS).

The organisations include the British Medical Association, the Royal College of Physicians and the British Association of Physicians of Indian Origin.

In 2018 the government accepted in full recommendations made by the Williams review into gross negligence manslaughter in healthcare, following the case of Dr Hadiza Bawa-Garba – this included the main recommendation that the GMC should have its right to appeal fitness to practice decisions removed.

The review also said that the Professional Standards Authority (PSA) would retain its near identical right of appeal to MPTS decisions.

However, as relevant legislative changes have not been made to the Medical Act, the GMC continue to appeal decisions. According to data obtained through an FOI (freedom of information) request, since the start of 2018 it has challenged at least 14 MPTS decisions.

Commenting on the strength of feeling on the issue from across healthcare, professor Dame Jane Dacre, president at the Medical Protection Society who coordinated the letter, said: “The GMC’s power to appeal decisions made by the MPTS has led to fear across the medical profession and a lack of confidence in the GMC. It is also unnecessary as the PSA has the authority to appeal decisions. The GMC is the only UK health regulator that has such a right of appeal.

“The government agreed that the GMC should be stripped of the power in June 2018, following the professor Sir Norman Williams review into gross negligence manslaughter in healthcare. However, until the relevant legislative changes are made to the Medical Act, the GMC can and do continue to challenge decisions.

“The government’s recommitment to removing the GMC’s right to appeal within the recent consultation on broader professional regulation reforms is welcome. It is however almost three years since it committed to making this change, and it should not be held up while a wide range of other complex proposals go through a round of further consultation.

“Implementing this change as part of the forthcoming Health and Social Care Bill would give the profession confidence that their concerns and the recommendations of the Williams review are now being acted on.

“There has never been a more important time to address this shortcoming.  Covid-19 has sparked discussion about the extent to which individuals should be held to account when working in pressurised and extreme circumstances, and now more than ever, the regulator needs to be able to operate in a way that instils confidence amongst patients and doctors.”

The letter to health secretary Matt Hancock calling for section 40A of the Medical Act 1983 to be removed as part of the upcoming Health and Social Care Bill, has been signed by Medical Protection Society, The Doctors’ Association UK, Hospital Consultants and Specialists Association, British Medical Association, Royal College of General Practitioners, Royal College of Surgeons of England, Royal College of Physicians, Royal College of Paediatrics and Child Health, Royal College of Surgeons of Edinburgh, Medical Women’s Federation, Association of Anaesthetists,  British Association of Physicians of Indian Origin, and Medical Defence Shield.

Read the original article here

Read the Jenny’s full analysis in the BMJ here:

https://blogs.bmj.com/bmj/2019/06/06/medical-manslaughter-will-the-findings-of-an-independent-review-be-a-tipping-point-for-change/

In our letter DAUK also:

-expresses concern regarding the news that the GMC has continued to appeal MPTS verdicts following the judgment in Bawa-Garba v GMC

-expresses concern that this week Lord Justice Bean urged that the GMC show ‘restraint’ when exercising this power in the judgment of Raychaudhuri v GMC on the 14th September, and in discussing the case appeal judges expressed ‘regret that it was brought’.

-expresses concern that the GMC is currently appealing the MPTS verdicts of four doctors in the courts in order to impose a higher sanction. DAUK has asked Mr Massey to grateful clarify if this is indeed the case.

-states that we still do not feel that doctors, the patient safety community and the public, have been provided with a clear understanding of how the GMC came to the decision to appeal the MPTS verdict in Dr Bawa-Garba’s case, or indeed the processes which the GMC follows when deciding to appeal the MPTS verdicts of other doctors’ cases.

-confirms that Dr Sarah Wollaston has informed us the Health Select Committee will hold an evidence session on gross negligence manslaughter and patient safety in the Autumn.

-informs Mr Massey that we will be urging the Government to move forward with the legislative changes needed to repeal the relevant amendment to Section 40A that allows the GMC to appeal MPTS verdicts in a timely matter.

-calls upon Massey to cease appealing MPTS verdicts urgently.

-supports the petition started by Dr Jenny Vaughan that calls on the GMC to ensure that the court fees awarded to Dr Bawa-Garba are not paid for from the subscription fees of the doctors who supported her.

-extends an invitation to both Mr Massey and Professor Terence Stephenson to the formal launch of our Learn Not Blame campagin in Westminster hosted by Dr Philippa Whitford MP in November.

read the full letter here

‘For those of us observing it’s still hard to believe that we have got to the stage where an otherwise dedicated and hard working doctor has been criminally prosecuted and taken to court by the GMC for what were essentially honest mistakes [made when] working under pressure,’ she said.

Dr Bawa-Garba is appealing a decision made in January by two High Court judges that she should be erased from the medical register rather than receive the year’s suspension that had previously been imposed by the Medical Practitioners Tribunal Service (MPTS).

‘Systemic failings’

Their ruling followed a successful appeal by the GMC, which argued that suspension was ‘not sufficient’ to protect the public or maintain public confidence in the medical profession.

On Wednesday, the opening day of the appeal, Dr Bawa-Garba’s counsel James Laddie QC said there was particular concern in the medical profession over the court’s decision to disregard ‘systemic failings’ which contributed to the environment in which Dr Bawa-Garba came to make the mistakes leading to the death of six-year-old Jack Adcock in 2011.

Dr Batt-Rawden, who sat in court during the appeal’s opening yesterday, said: ‘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.

‘This has huge ramifications for the medical profession and for patient safety. We are all working in an immensely pressured system, with widespread staffing issues and rota gaps. Hadiza’s story of doing the jobs of several doctors at once, across multiple wards and multiple floors, with a failing IT system, in the absence of senior colleagues or indeed a consultant is sadly increasingly common.

‘Before this case I don’t think any doctors thought that mistakes made whilst simply trying their best under such pressured circumstances would ever lead to a criminal conviction, or erasure from the register. Now, all of us are feeling vulnerable.’

In written argument before the court, Ivan Hare QC for the GMC said the appeal should be dismissed because the High Court was correct to decide that the MPTS failed to apply the relevant rule of the GMC (Fitness to Practise) Rules Order of Council 2004 and undermined the rationale for making criminal convictions conclusive evidence of the offence committed in disciplinary cases.

In response to Dr Bawa-Garba’s case, The Doctors’ Association UK has launched a new campaign ‘Learn not Blame’.

‘We must move away from a culture of blame and fear, to one of learning,’ Dr Batt-Rawden said. ‘We repeatedly fail to learn from scandals such as Mid-Staffs and Gosport and the NHS urgently needs a safe space to enable staff to speak up about patient safety issues.’

She added that there are ‘no winners’ in a culture which seeks to blame one individual for medical error whilst failing to address wider system failures.

‘Our ongoing campaign seeks to empower doctors to be part of a transformational change process working towards a shift from a culture of blame, to one of learning.’

She concluded: ‘An unsuccessful appeal today would do further damage to a profession whose morale is already at rock bottom, and signals a further move away from the open, transparent NHS that we all want to see.’