Professional Discipline & Regulatory Team – Quarterly Update – Winter 2020.
18 December 2020
Welcome to the Professional Discipline and Regulatory Law Team’s first quarterly update. We are pleased to announce that our webinar series will launch on the 26 January 2021 with a webinar ‘Remote hearings; lockdown & beyond with a review of Dutta v GMC’.
In September 2020 the PSA published guidance for healthcare regulators concerning the use of remote hearings, available here. The regulators appear to have a mixed approach to substantive hearings, with some opting for virtual hearings across the board, others listing hearings in person and some with a hybrid of both. We agree with the guidance that decisions about the type of hearing to be held must be taken on a case by case basis, taking into account:
- the view of the parties;
- the availability of technology;
- the nature of the charges;
- practical considerations about the presentation of evidence; and
- the vulnerabilities of witnesses and registrants.
Our experiences so far suggest that hybrid hearings are often a suitable option for hearing the most contentious evidence in person, while avoiding the need to attend for legal submissions, or where witnesses are to give remote evidence.
GMC Guidance on Consent
The GMC has updated its guidance on consent, found here: https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/decision-making-and-consent. The new guidance came into force on 9 November 2020 and is expected to have implications beyond the medical profession. The GMC sets out seven "key principles", as follows:
- All patients have the right to be involved in decisions about their treatment and care and be supported to make informed decisions if they are able.
- Decision making is an ongoing process focused on meaningful dialogue: the exchange of relevant information specific to the individual patient.
- All patients have the right to be listened to, and to be given the information they need to make a decision and the time and support they need to understand it.
- Doctors must try to find out what matters to patients so they can share relevant information about the benefits and harms of proposed options and reasonable alternatives, including the option to take no action.
- Doctors must start from the presumption that all adult patients have capacity to make decisions about their treatment and care. A patient can only be judged to lack capacity to make a specific decision at a specific time, and only after assessment in line with legal requirements.
- The choice of treatment or care for patients who lack capacity must be of overall benefit to them, and decisions should be made in consultation with those who are close to them or advocating for them.
- Patients whose right to consent is affected by law should be supported to be involved in the decision-making process, and to exercise choice if possible.
The lengthy document contains some interesting paragraphs concerning the Mental Capacity Act and the provision of care and treatment for those lacking capacity. The guidance helpfully reminds practitioners that there must be a presumption in favour of capacity, and that capacity is both decision specific and time specific.
Landmark CQC Prosecution
The CQC has brought two charges against East Kent NHS Trust, of failing to discharge its duty under Regulation 12(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, in that it failed to provide safe care and treatment exposing a service user to significant risk of avoidable harm, pursuant to Regulation 22(2)(b) of the Regulations. The Trust is liable to a penalty under Regulation 23 of the Regulations for failures in care provided to a mother and baby in November 2017. The Trust has admitted that it failed to provide safe care and treatment. This is the first prosecution of its kind; although the CQC has prosecuted hospitals for health and safety related failures it has never previously prosecuted an NHS trust for a breach of Regulation 12.
The charging decision follows an increase in the CQCs use of the full range of enforcement powers, including prosecutions for breaches of Regulation 12. The CQC Annual Report for 2019/2020 has yet to be published, but it is expected to show a significant increase in enforcement actions by the regulator. Registered Providers and Registered Managers should be aware of their potential liabilities under the Regulations. The case is likely to raise the stakes in a number of ongoing inquests into deaths of patients, particularly in the light of the recent case of Maughan.
Case Law Update
Laura Bayley and Claire Robinson have also prepared a series of case law updates: