Most people who followed the press coverage in the UK following the public announcement of an ambitious national vaccination rollout would have foreseen the possibility for tension to exist between the public drive for everyone to be vaccinated against COVID-19 and the right of autonomy to refuse. The number of “anti-vax” conspiracy theories circulating online is simply staggering and some of the farcical claims really do beggar belief, notwithstanding the government’s attempts to allay these concerns. However, whilst many are content for individuals to make their own informed (or otherwise) decision, it becomes a far more emotive subject when the workers concerned are in the healthcare sector. Chances are, the majority of people reading this will have been affected directly or indirectly by COVID-19 and many more will have vulnerable or elderly relatives who rely upon the care and unwavering dedication of healthcare workers but it may not be a particularly comforting thought if the person providing that care to a vulnerable loved one were to refuse the vaccine.Continue reading “COVID-19 vaccinations – the right for healthcare workers to decide and the impact on social care”
Telemedicine is a general term that refers to the provision of medical care at a distance through telecommunications technology.
Synchronous telemedicine is performed in real time, such as a video call between a patient and a provider. It can also be provider-to-provider such as when an A&E doctor consults with a remote cardiologist on the best treatment for a patient.
Asynchronous telemedicine includes “store-and-forward” technologies, such as online portals that allow patient–provider or provider–provider communications. It also includes chat bots such as those designed to help a patient decide whether to get tested for the virus that causes COVID-19 and remote monitoring of patients through wearable or implantable devices.
Telemedicine comes in many shapes and sizes and offers many advantages over the traditional healthcare visit. Two key drivers of health and social care policy in the UK over the last decade have been related to patient convenience and controlling the growing budgetary pressures.Continue reading “The Rise of Telemedicine”
Dr Kevin Peter Newley v General Medical Council  EWHC 1538 (Admin)
The judgment in a recent High Court appeal shines a spotlight on the need for registrants to acknowledge (although not necessarily accept) the findings made by a substantive regulatory Tribunal and to demonstrate the remedial steps taken to ensure the situation does not arise again.
Dr Newley appeared before the Medical Protection Tribunal Service facing clinical allegations concerning eight patients. His fitness to practise was found impaired and a nine month suspension order was imposed. Dr Newley unsuccessfully appealed against the tribunal’s decisions on impairment and sanction. A review hearing subsequently took place which resulted in an order of conditions being imposed. Dr Newley appealed against the decision of the review tribunal but, again, was unsuccessful.Continue reading ““Rigid and concerning resistance” – Insight and review hearings”
General Medical Council v Dr Azubuike Udoye  EWCA 1511 (Admin)
Dr Udoye appeared before the MPTS facing charges of dishonesty. He did not give evidence and the case concluded with a finding of no misconduct. Perhaps unsurprisingly, the GMC utilised its right of appeal, under s.40 of the Medical Act 1983. Mr Justice Holgate had no difficulty in upholding the appeal and remitting a number of allegations for consideration by a differently constituted Tribunal.
The facts of the case were that Dr Udoye qualified as a doctor in Nigeria and later sought inclusion in the GMC’s GP register. Having unsuccessfully sought a certificate of eligibility for GP registration, he joined a GP Induction and Refresher scheme (a scheme for doctors previously included in the GP register whereas Dr Udoye had never been included).
The relevant allegations before the MPTS related to Dr Udoye’s completion of the scheme’s registration form (in which he stated that he was included in the GMC’s GP register) and practising as a GP during the scheme. The Tribunal concluded:
- that Dr Udoye had not practised as a GP as his work was supervised meaning that he had not practised as an “independent” GP; and
- that the GMC had not proved on the balance of probabilities that Dr Udoye had acted dishonestly when completing the registration form as the evidence in terms of a dishonest or innocent explanation was finely balanced.
The GMC appealed on the grounds that the Tribunal had misinterpreted the allegation that Dr Udoye had not practised as a GP and that the Tribunal had not given proper consideration to whether an adverse inference should be drawn from Dr Udoye’s decision not to give evidence.
Mr Justice Holgate held that the Tribunal had erred in adding the word “independent” into the allegation that Dr Udoye had practised as a GP, there was no justification for adding this word and that the language of the allegation was “perfectly straightforward and clear”.
It is set out that the GMC’s position regarding the meaning of the charge was made clear in writing, in response to a submission of no case to answer, with that response being adopted in closing submissions. Mr Justice Holgate comments that it is a pity that the Tribunal did not confirm that they had the document in question and that they had re-read the relevant passage before the hearing concluded. A pity indeed given the cost of the appeal process and the inevitable delay and costs arising from the need for a further MPTS hearing.
It was also held that the Tribunal’s reasoning was flawed in respect of the application of the principles set out in R (Kuzmin) v General Medical Council  EWHC 2129 (Admin) when considering whether or not an adverse inference should be drawn.
Kuzmin established that an adverse inference can be drawn from a registrant refusing to give evidence. It was held that whether to draw an adverse inference would be dependent upon the facts of the case but that generally, no adverse inference would be appropriate unless the following criteria are met:
i) a prima facie case to answer has been established;
ii) the individual has been given appropriate notice and an appropriate warning that, if he does not give evidence, then such an inference may be drawn; and an opportunity to explain why it would not be reasonable for him to give evidence and, if it is found that he has no reasonable explanation, an opportunity to give evidence;
iii) there is no reasonable explanation for his not giving evidence; and
iv) there are no other circumstances in the particular case which would make it unfair to draw such an inference.
It is in considering (iv) that the Tribunal went astray as they are said to have “embarked upon a full evaluation of the merits of the allegation disregarding the issue of whether an adverse inference should be drawn”.
Mr Justice Holgate held that it is plain that criterion (iv) is only concerned with procedural unfairness (with all of the Kuzmin criteria being rooted in principles of fairness) and that a Tribunal should not examine all of the evidence for or against the allegation to decide whether the criterion has been met.
Should it be established that the criteria set out in Kuzmin are met, the Tribunal should go on to consider whether it is appropriate to draw an adverse inference and can at that stage take into account important public interest considerations. Should an adverse inference be drawn, that is one factor to be taken into account when deciding whether the allegation is proved. A decision should be made as to how much weight is to be given to the adverse inference, with it being possible that no significant weight will be given. When considering the weight to be attached, a Tribunal should consider the impact of there being no opportunity to test the credibility of the registrant’s evidence or the merits of any innocent explanation that has been put forward by way of submissions alone.
Mr Justice Holgate held that in view of equal weight having been given by the Tribunal to all other matters for and against the allegation, the issue of whether an adverse inference should be drawn and how much weight should be given to it was “obviously material” and that the Tribunal’s reasoning, in disregarding that process, was legally flawed.
In conclusion, it seems that the Tribunal strayed into interpreting and adding to the allegations when there was no need to do so. Further, faced with a possible dishonest or innocent explanation and without the benefit of the registrant giving evidence, the Tribunal failed to follow the careful, staged approach that is required when a registrant declines to give evidence. A Tribunal must consider procedural fairness at the outset then decide whether to draw an adverse inference before assessing the evidence and whether or not an allegation is proved. Conflating these processes will only lead to trouble and potentially a fresh hearing before another Tribunal.
Laura Smith, Associate, BLM
Dr Sastry & Dr Okpara v GMC  EWCA Civ 623
Both Dr Sastry and Dr Okpara appealed against decisions by the Medical Practitioners Tribunal (MPT) to erase their names from the register. Both appeals were dismissed at first instance as the High Court on each occasion was reluctant to interfere with the original tribunal’s decision.Continue reading “What is the appropriate measure of diffidence/deference to be accorded to the MPT?”
In the recent case of Towuaghantse v GMC, Dr Towuaghantse sought to argue that the critical narrative conclusion of a Coroner could not be adduced in evidence against him before his regulator. That the findings of fact made by the Coroner could be adduced was not in dispute.Continue reading “Towuaghantse v GMC & the importance of seeking early advice in inquest proceedings”
On 24 March 2021 the Department of Health and Social Care published an open consultation “Regulating Health Care Professionals, Protecting the Public“. The consultation is set to run until 16 June 2021.
The consultation has been keenly awaited and follows the Government response of July 2019 to a consultation run in 2017. Whilst change has been delayed owing to issues such as Brexit and, of course, the pandemic, it seems we are edging closer to reform of professional regulation.Continue reading “Regulatory Reform – the wheels are in motion”
The CQC has completed its review of ‘do not attempt cardiopulmonary resuscitation’ decisions during the coronavirus (COVID-19) pandemic and has published its findings on 18 March 2021 CQC report – Protect, respect, connect. It has, rightly, received much publicity which will hopefully mean that the recommendations contained in the report will be followed.Continue reading “CQC publishes report “Protect, respect, connect – decisions about living and dying well during COVID-19””
We have previously written on this blog about the growing use of technology in the social care sphere, and how existing tech can be adapted and developed in particular for use in the care of the elderly. Now, an open letter has been written to the Prime Minister urging him to prioritize funding for the development of technology in the social care sector (see here for a copy of the letter ). The letter is written by PainChek, a medical technology company and is supported by various social care bodies such as Care England, the National Care Forum and the National Care Association. The letter emphasises that dementia and Alzheimer’s disease are the country’s biggest “silent killer” and seriously affect the lives of many people.Continue reading “Further calls for tech developments for the Social Care Sector”
The Care Quality Commission (CQC) have published updated guidance on meeting the duty of candour.
The updated guidance, which can be viewed here, applies to all health and social care providers registered with the CQC.
The update provides a more detailed explanation of what a notifiable safety incident is and now makes clear that the apology which is required as part of fulfilling the duty does not equate to an admission of liability. As such, an apology will not affect a provider’s indemnity cover.Continue reading “Updated Guidance on the Statutory Duty of Candour: Greater Clarity for Registered Providers”