There is currently a government public consultation underway which will inform the future of healthcare regulation within the UK. The consultation is open until 12:15 on 16 June 2021 and can be accessed here.
On 11 May 2021 I attended the Westminster Health Forum seminar which looked at the proposed reform of regulation of healthcare professionals. The forum was attended as you would expect, by all of the main professional indemnity bodies, regulatory bodies, AvMA and the Professional Standards Authority and was chaired by Baroness Jolly. Generally it was considered a positive step that the government is looking to reform and standardise the regulation of the multitude of Healthcare professions involved in modern day patient care. Emphasis was placed on the fact that much healthcare is now provided by multidisciplinary teams and the need to ensure that the systems in place, as much as the individuals concerned, work in a way that prioritises patient safety and the welfare of healthcare professionals.
Clea Harmer, chief executive of Sands, spoke very well about the reforms and the need to closely involve the patients and their families in the regulatory process. Concern was expressed by Clea, Peter Walsh (AvMA) and Alan Clamp (Chief Exec PSA), that the proposed reforms do not provide sufficient inclusion of the affected patients and do not provide any mechanism for them to receive independent advice and assistance.
Peter Walsh and Alan Clamp spoke passionately about the need for safety netting for the new proposed Accepted Outcomes process. This is when the registrant who has been referred for investigation accepts the factual basis of the referral and the sanction proposed, and is intended to remove the considerable burden on the regulatory bodies of having to hold a formal hearing, as well as a much quicker and more efficient process, protecting the well-being of the registrant as well as the patients Whilst supportive of the Approved Outcomes process in general, both speakers voiced concern that there is currently no formal right of appeal in the proposals, or any independent body (such as the PSA) appointed to oversee the process and the decisions/outcomes reached. This was considered a significant flaw in the proposal and as the PSA note, the Regulatory Body would end up acting as investigator, prosecutor, judge and appeal court, all in one.
Peter Walsh also cautioned against the proposal that there be a 5 year rule, providing that regulators cannot investigate allegations of professional misconduct that happened more than 5 years’ ago, and expressed the view that the regulators should have a ‘Duty’ to investigate allegations of misconduct, rather than simply a ‘Power’.
Jenny Vaughan, Chair and Learn not Blame Lead at the Doctors’ Association paid tribute to the healthcare staff who have had to work through tremendously difficult times during the coronavirus pandemic and made an impassioned plea for the wellbeing of healthcare staff, as well as patients, to be given highest priority when finalising the reforms. She reminded everyone present that all healthcare workers are human and no-one is infallible.
As a specialist clinical negligence lawyer I unfortunately come to learn of numerous situations where errors have been made. Sometimes this is by a single individual, such as a surgeon making a mistake during surgery, but more and more often it is a failure in the process and in communication between teams, such as a failure to follow up on a CT scan which has revealed an undiagnosed tumour or a failure to communicate a deterioration in a patient’s condition over the last shift to the incoming team.
I have only twice in my career come across a situation where I had concerns that a doctor was deliberately causing harm (one was struck off, the other is no longer practising). In the overwhelming majority of cases harm has been caused by an error of judgement or a genuine mistake. As Jenny Vaughan said, everyone is human and not all errors of judgement should result in a healthcare professional being required to appear before a panel of their regulatory body. However, some errors are so significant, or may have been repeated, that it is right that the individual’s professional competence is scrutinised and appropriate steps taken to prevent a recurrence.
It is also vitally important that where systemic failings have led to an error, patients have confidence that the reasons giving rise to such mistakes (staff shortages, lack of supervision, poor record keeping etc.) will be investigated and steps taken to prevent them occurring again.
A civil claim for compensation for clinical negligence can help to rebuild the lives of those patients who have suffered substantial injury as a result of a negligent medical care and to ensure that they have the care, support, treatment and equipment they need to lead as full and independent a life as possible. A clinical negligence claim is focussed on the patient who has suffered injury and their family. It will not of itself trigger an investigation into a healthcare worker’s professional competence by their regulatory body, and in the majority of cases, nor should it. However the internal investigation systems and the regulatory process are key mechanisms available to maximise patient safety and minimise the risk of further harm. Both systems in tandem are essential to protect both the public and the individuals who work in our varied healthcare professions.
This consultation is really important in terms of future patient safety and the way that healthcare professionals are regulated going forward. I encourage you to provide your views as part of the public consultation and in particular to ensure that the concerns raised by AvMA and the PSA are addressed. If you are able to, please take the time to participate in the consultation which can be found at this link.
Further information on the concerns raised by AvMA and the PSA can be found at:
