Fortune favours the brave

For a moment – guess who said this, and when?

“We will be studying the report carefully to identify learning points.  We are committed to taking any further action necessary in light of information revealed by this report.”

Do we need another report?

More lessons learned?

It seemed like – not that long ago – we were discussing Southern Health or Winterbourne?

This saying above was in fact reported to have been the responseof Charlie Massey, CEO of the General Medical Council (GMC), in response to the events at Gosport War Memorial Hospital.

Dr Jane Barton, meanwhile, the doctor at the centre of this, is reported to have said,

“Throughout my career I have tried to do my very best for all my patients and have had only their interests and wellbeing at heart.”

It is very hard for one  to know what Dr Jane Barton’s precise reasoning was behind the management of her patients, without reading the transcripts of her evidence in her GMC hearings. Media accounts and headlines can be misleading, and lend themselves to ‘trial by media’.

Dr Barton was found guilty of “multiple instances of serious professional misconduct” by the General Medical Council in 2010 but was not struck off and soon retired. But – likewise unfortunately – it is perhaps very hard to avoid one of the other problems in all: the concern that, if Dr Jane Barton had not been a Causasian graduate but been a BAME trainee, would she have been struck off? It has been recently announced that the General Medical Council (GMC) has today announced that Roger Kline and Dr Doyin Atewologun will lead a major project to better understand why some doctors are referred to the regulator for fitness to practise issues more than others. Although previous studies have apparently found that the GMC’s processes do not introduce disproportionality in investigations into doctors, research has not yet established deeper reasons behind why certain groups of doctors are referred to the GMC by their employers more often. We know from the fiascos of how various cases have been dealt with, such as Dr David Sellu’s where the GMC is reported to have wanted to proceed with fitness to practise proceedings after his conviction for gross negligence manslaughter was squashed,  that a review into “medical manslaughter” could not come a moment too soon.

Dr David Nicholl’s comment in the BMJ is truly chilling:

“The GMC’s own regulator, the Professional Standards Authority, has pointed out that the GMC did not have to appeal the MPTS (medical practitioners tribunal service) decision to suspend rather than strike off Bawa-Garba. This contrasts with the GMC’s failure to take action against convicted sex offenders. There is a higher rate of complaints about BME doctors to the GMC. My fear is that if the GMC lose the appeal court hearing, these aspects will be brushed aside, there will be a rush to blame, and a failure to properly investigate. Neither the Williams nor Marx reviews will fully address the wider issues of how gross negligence manslaughter is relevant to all healthcare professionals, not just doctors, for example, the nurse Isabel Amaro was given a suspended prison sentence following the death of Jack Adcock.”

Furthermore, there is, potentially and problematically, a fine line with an intent to kill a particular individual, the mens rea for murder in English law, and ‘symptom control’ as per palliative medicine. But, by keeping Dr Barton on the register, was the General Medical Council acting to maintain public confidence? Or, other hand, would a stronger sanction for Dr Jane Barton have had the inadvertent effect of criminalising palliative care? Contrast this with the case of Dr Bawa-Garba, who had had an unblemished career as a trainee. Dr Bawa-Garba was faced with a number of serious problems which could face any junior doctor: for example, there may be inadequate senior cover, or inadequate access to blood results. Here, in addition to the possible as yet unproven racist element, there are wider system factors.

If doctors cannot whistle blow or discuss errors, then there will definitely be a problem with public confidence.

Sir Robert Francis QC once remarked:

‘It’s not a system which is conducive to openness and learning and a blame-free culture. But we are not going to get away from prosecution and people being held to account until the public can be confident that proper processes are in place to address their grievances. Patients and their families need to properly involved in the process of looking at what happened after things go wrong.

Investigations need to be blame free and the outcome of all of this must not only be full disclosure of what happened, why it happened, a recognition by all professionals involved of what their part was and a commitment to take any remedial action. Only then can we get the trust the patients and public need to end the climate of fear.”

This means a holistic look at what is going on. For example, in a BAME junior doctor with a blatant alcohol misuse problem, the regulator could look at why that junior doctor’s consultants or the Trust did not actively deal with an alcohol problem when that junior doctor was seeing patients on the ward? Or if there was an incident what did the Trust’s clinical governance procedures do, if anything, at the time? If the answer to both questions is nothing, the GMC should look carefully at the morality of its case. There should be opportunity for a detailed ‘right to reply’ from accused doctors, especially when they have been ganged up on former bosses years after leaving their posts. I feel that a big step foreward would be to allow junior doctors or allied health professionals to whistleblow against their senior colleagues, if necessary, if they feel inadequately supported there is a clear threat to patient safety. We do know that, from the legal events and the response of institutions such as the BMA regarding Dr Chris Day, whose career was effectively prematurely destroyed, that institutions have felt uneasy about whistleblowing protection for junior doctors.

In summary, I feel that the GMC needs to be totally clear what its actual rôle in patient safety is, and, if it is not capable of promoting patient safety, I feel that parliament should take away its statutory power. All doctors, including Consultants, need training, and need to be able to learn from things which go wrong. Doctors are not above the law, and are commonly accused of shroud waving. But clearly there is a problem if patients are also dissatisfied with the actions of the medical regulator in the light of various cases, including Mid Staffs, Ian Paterson, Gosport War Memorial. Stunts, such as doctors being allowed to emigrate without sanction, or allowed to retire before being erased for serious misfeasance, have got to stop, and, again, Parliament may need to legislate.

As for the long term future of the GMC, I feel with the reform of the NHS and social care to be reported later this year, I leave this in the hands of parliament, such as the Health Select Committee. It could be argued that ‘there is nothing to see here’, but, if promoting patient safety does not include learning from mistakes, I strongly believe that the GMC should not survive. But I would be the first to be truly delighted if the GMC had the humility to learn from its serious mistakes.

Otherwise, as I myself have discovered, no-one or no entity is indispensable.