“Rigid and concerning resistance” – Insight and review hearings

Dr Kevin Peter Newley v General Medical Council [2021] 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. 

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What is the appropriate measure of diffidence/deference to be accorded to the MPT?

Dr Sastry & Dr Okpara v GMC [2021] 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.

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Towuaghantse v GMC & the importance of seeking early advice in inquest proceedings

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.

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Regulatory Reform – the wheels are in motion

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.

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New GDC guidance on factors to be taken into account – a step in the right direction?

Following the joint statement published by regulators at the start of the pandemic, on 14 January 2021, the GDC published supplementary advice to decision makers on the factors to be taken into account when considering complaints arising during the pandemic.

The advice, which is to be welcomed, sets out the various contextual matters to be taken into account by decision makers which include environmental issues and resource, guidelines and protocols.

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Potential impact of carers refusing to be vaccinated

As shown in the BLM Policy blog of 15 December 2020 (link here), COVID-19 (C-19) compensation claims appear to be gathering some momentum although, at this point, the total number of such claims that have been officially registered with the Compensation Recovery Unit of the UK Department for Work & Pensions remains very low.

As we have noted previously, new and untested questions on standard of care and legal causation would likely arise in any litigated C-19 claim. In this blog, we re-visit certain aspects of these potential questions in the context of vaccinations for care home staff.

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COVID-19: does the response of the regulators call for a fresh approach?

During the first wave of the COVID-19 pandemic, healthcare regulators reviewed their processes and made a joint commitment to take human and environmental factors into consideration when determining whether a complaint/incident reached the threshold for fitness to practise action.

In addition, the country saw an outpouring of support and affection for healthcare practitioners working hard to treat patients in hugely pressured and trying circumstances.

Alongside the guidance on relevant factors to consider during the life of an investigation, emergency registration was granted to recently retired practitioners under emergency powers granted by the Coronavirus Act 2020. Notably,  the GMC introduced guidance for decision makers on requests to relax or revoke sanctions or IOT orders in response to COVID-19 which allowed those whose registration was subject to restriction to apply for an early review of that restriction.

Do these changes reflect a change in what may be determined in the public interest and can healthcare professionals be reassured that such changes will remain in place once the impact of the pandemic has subsided? It may be more apposite to ask whether they should remain in place.

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Article 2: right to life in a state-funded care home?

On 10 June 2020, the Court of Appeal handed down its judgment on the case of Maguire v Her Majesty’s Senior Coroner for Blackpool and Fylde and ors. This landmark judgment considered the engagement of Article 2 of the European Convention on Human Rights (ECHR) in the context of inquests relating to vulnerable adults who lack capacity living in state-funded care homes.

The facts:

The deceased, known as Jackie, had learning disabilities, behavioural difficulties and some physical limitations. She lived in a care home supervised and funded by the local authority which provided accommodation and care for vulnerable adults, like Jackie, who lacked capacity to make decisions about their living arrangements and welfare. Jackie was subject to Deprivation of Liberty Safeguards (DoLS) and had a history of objecting to medical treatment.

Jackie died in hospital on 22 February 2017. The cause of death was 1) perforated gastric ulcer and peritonitis and 2) pneumonia. A number of failures by care staff and medical professionals were identified and investigated during the inquest. Jackie’s family were critical of actions taken during the 48 hours prior to her death including:

  1. the GP’s decision to triage Jackie by telephone instead of attending in person
  2. a failure by an NHS call handler to relay a full account of Jackie’s history to the paramedics and
  3. the absence of a care plan to address Jackie’s refusal to attend the hospital.

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MPs hear evidence of how other countries have managed COVID-19 in care homes

The Health and Social Care Committee is a cross party body of Westminster MPs that scrutinises the work of the Department of Health and Social Care and associated bodies.  It is presently dealing with several Inquiries concerning the Covid19.  One its Inquiries is looking at the management of the Coronavirus outbreak. This week it heard evidence from Hong Kong and Germany as to how these countries have managed to prevent the spread of Covid19 in care homes.

The Inquiry heard from Professor Lum, the head of Social Care at Hong Kong University and Isabell Halletz, the CEO of a German employers association for care homes.  Both gave evidence as to the strict regime put in place in respect of patients being discharged from hospitals to care homes, whereby such patients would require a negative test for Covid19 before they could be admitted to a care home.   Any persons diagnosed with Covid19 would be quarantined, as well as other people they have come into contact with.  In contrast the Department of Health and Social Care until very recently stated in official guidance that a negative test for Covid19 was not required prior to admission to a care home.

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COVID-19 crisis – indemnity for those being redeployed or returning to practise

Last week the government rushed legislation through Parliament to deal with the coronavirus outbreak in the form of the Coronavirus Act.

The Act contains a range of provisions to deal with the crisis including the emergency registration of nurses and other health care professionals and social workers, the aim being to ensure that as many healthcare professionals as possible are available to the health service.

Those who return or are redeployed may well be concerned about whether they will be covered in the event that they face a claim for damages arising out of a breach of duty which results in the injury or death of a patient.

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