Has the Pandemic Further Emphasised the Need for Regulatory Reform in the Healthcare Sector?

We are now nine months into the pandemic and we are still learning new things about its effect on our personal and professional lives. Earlier in the year, we blogged on several topics with reference to the medical profession in the context of the pandemic, including:
 

• the emergency legislation and the potential issues that may arise from rationing decisions;
• the need for doctors to exercise judgement as to when in-person consultations may be necessary;
• how the emergency legislation may impact healthcare professionals; and
• key regulatory advice for doctors in the pandemic.

One of the issues which has become more prevalent, is the need for reform of the medico-legal system. A paper published by an interdisciplinary team in the Journal of the Royal Society of Medicine focussed on some key points, including the call by some for immunity from civil and criminal claims and regulatory proceedings arising from treatment during COVID-19 and the potential for BAME doctors to be “double hit” by both the now well-documented disproportionate effects of COVID-19 on their personal medical health, and the potentially increased medico-legal consequences of working on the frontline. As a Regulatory lawyer who specialises in assisting doctors and the head of Kingsley Napley’s BAME and Allies Network, these topics are of particular interest and relevance to me.

Some heavily criticized the General Medical Council (“GMC”) following the Bawa-Garba case, including concern about the potential for discrimination based on the doctor’s race, ethnicity and cultural background. To its credit, the regulator commissioned a study which prompted the Fair to Refer report. Some of the report’s key findings were:

• Doctors in diverse groups do not consistently receive ‘effective, honest or timely feedback’ because some managers avoid difficult conversations. The effect being that concerns may not be addressed early;
• ‘Some doctors are provided with inadequate induction and/or ongoing support in transitioning to new social, cultural and professional environments’;
• Some leadership teams do not seek the views of less senior staff and are not welcoming of  challenge, thereby allowing divisive cultures to develop; and
• Some organisational cultures seek to blame, rather than focus on learning, which creates particular risks for doctors who are ‘outsiders’.

It is clear that many doctors are concerned about the prospect of a referral and resultant fitness to practise proceedings as a result of matters occurring during this COVID-19 period. So what needs to be considered to allay these fears?

• Blanket immunity is clearly not the answer, as genuine concerns need to be considered and proportionately dealt with. Nonetheless, the GMC may need to consider additions to its complaints system to ensure appropriate filtering of issues which arise as a result of the pandemic with additional guidance to organisations (i.e. NHS Trusts, private hospitals etc) about the kinds of matters which should be dealt with locally, rather than referred to the regulator;
• It has been recognised for some time that the current fitness to practise system is too inflexible and lengthy at times. Reform has been on the Government’s agenda for some time, and it needs to be pushed forward in consultation with regulators and the profession;  
• More support should be offered to doctors (at local level, by defence organisations, forums etc) by way of webinars and advice to assist them during this period. This should not just focus on clinical decision-making, but also wellbeing; and
• I agree with the publication’s suggestion that: ‘more comprehensive action to address the persistent issues revealed by the lens of COVID-19, including embedding a restorative approach in healthcare’ is required.

Having worked in this field for some time, I am all too aware that facing a fitness to practise hearing is extremely stressful for doctors. The addition of pressure during the pandemic cannot be understated. There must be more focus on collaborative working, inclusive leadership and working environments along with a concerted effort by the regulator to work with doctors to avoid issues arising, rather than dealing with the problem once it has arisen.

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact Shannett or a member of the Regulatory team.

ABOUT THE AUTHOR

Shannett is a Partner in the Regulatory Team providing regulatory advice predominantly in the health and social care sector. She is also a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act.