Occupational Health Law. Diana Kloss

      General Introduction

      Law and ethics

      Doctors and nurses are subject to the law and to the courts. As professionals, they are also ruled by ethical principles which may impose more onerous duties. In the United Kingdom the regulation of the professions is at present delegated by Parliament to professional bodies like the General Medical Council (GMC) for doctors (Medical Act 1983), and the Nursing and Midwifery Council (NMC) (formerly the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC)) for nurses, midwives and health visitors (Nurses, Midwives and Health Visitors Act 1997). The decision whether an individual has behaved so disgracefully or incompetently that he or she is unfit to continue as a doctor or nurse were in the past granted to committees of these bodies. Appeals by the health professional to the courts were only likely to succeed if the professional conduct committee failed to hold a fair hearing, or reached a decision which the judges considered so glaringly unreasonable that it must be beyond the committee’s remit. There was no right of appeal against a committee’s decision to exonerate or to impose a light sentence on an alleged offender.

      It can fairly be said that in recent years the professional bodies have lost much of the confidence which the general public once placed in them. A series of careless, incompetent and occasionally criminal doctors have been allowed to continue in practice without the professional body taking any action. One prime example was the eventual disclosure of excessive mortality of children undergoing certain types of heart surgery at Bristol Royal Infirmary. It came to light only through the actions of a ‘whistleblower’ anaesthetist who had to move to Australia because of the opprobrium to which he was subjected. Dr Roylance, the Chief Executive, was struck off the medical register by the GMC because of his management failures, which were held to amount to serious professional misconduct. This was upheld by the Privy Council (Roylance v. General Medical Council (1999)). Legislation created a Council for the Regulation of Healthcare Professions (CRHCP), renamed the Council for Healthcare Regulatory Excellence (CHRE), with power to ask the High Court for a review of decisions thought to be too lenient. In 2012 the powers of the CHRE were transferred to the Professional Standards Authority for Health and Social Care by virtue of the Health and Social Care Act of that year.

In CRHCP v. Nursing and Midwifery Council and Truscott (2004) Stephen Truscott was a paediatric nurse employed as a staff nurse. It was alleged that while on duty he had downloaded sexually explicit material on a computer. He admitted the charge of misconduct. The Nursing and Midwifery Council Professional Conduct Committee imposed a caution that would remain on his record for five years. The CRHCP protested that this penalty was unduly lenient and nothing short of removal from the register would be appropriate. They appealed to the High Court under the new procedure, but the court refused to interfere. The pornography was adult and not criminal. Truscott had already been dismissed. The power of the court to interfere was for the protection of members of the public, rather than the punishment of the individual.

      In a similar case involving a doctor, the court held that it had power to hear an appeal against the GMC Professional Conduct Committee’s ruling that a GP was not guilty of conducting a sexual relationship with one of his patients. The decision had been reached without hearing important relevant evidence, for example from the doctor’s partners who had been ready to give evidence (CRHCP v. GMC and Dr Ruscillo (2004)). The Professional Conduct Committee should consider the case a second time, this time with all the relevant evidence available.

      A review of medical regulation by the Chief Medical Officer in 2006 led to a White Paper: Trust, Assurance and Safety – the Regulation of Health Professionals in 2007. One of its proposals was that the disciplinary function should be transferred to an independent body. The GMC has now reformed its disciplinary procedures. New fitness to practise criteria were introduced. In May 2008 there was a change in the standard of proof required at Fitness to Practise hearings. A case must now be proved on a balance of reasonable probabilities (the civil standard), not beyond a reasonable doubt (the criminal standard). The NMC followed suit in October 2008. In 2012 the Medical Practitioners Tribunal Service (MPTS) was set up. Now the GMC acts as the investigator and prosecutor of doctors accused of professional misconduct. An independent tribunal decides on guilt or innocence and on the appropriate penalty for those found guilty.

      In R v. Bawa‐Garba (2015) a junior doctor specialising in paediatrics was convicted of manslaughter by gross negligence and given a suspended sentence of imprisonment of two years. A nurse on duty at the same time was convicted of the same offence. The case concerned the treatment of a six‐year‐old boy with Down’s syndrome who died in hospital of septic shock. The doctor had only recently returned from maternity leave, she had been working long hours, and there were failings in the hospital administration. Nevertheless, an expert witness gave evidence that Dr Bawa‐Garba had made mistakes that he would not expect from a competent junior doctor. The jury convicted by a majority of 10:2. An appeal against conviction was unsuccessful because the trial and the judge’s summing up had been fair. In our criminal justice system it is for the jury to decide guilt or innocence. The issue then arose as to whether Dr Bawa‐Garba was fit to continue to practise medicine, a matter for the GMC and the MPTS. The GMC decided that the public might be concerned that a doctor convicted of the manslaughter of a patient was allowed to remain in practice and referred the case to the tribunal. The fact that a doctor has made a mistake, even a serious mistake leading to a death, does not necessarily mean that they are unfit to practise medicine, because if they learn from their experience they are unlikely to make the same mistake again. After considering all the facts, the MPTS ruled that the doctor could remain on the medical register after a period of suspension of 12 months. The GMC was concerned that the public might lose faith if a doctor convicted of a serious crime was allowed to continue in practice. The GMC appealed to the High Court which overruled the tribunal, but a further appeal to the Court of Appeal was successful and Bawa‐Garba was restored to the medical register Bawa‐Garba v. GMC (2018).

      There was a fundamental difference between the task and necessary approach of the jury, on the one hand, and that of the Tribunal on the other. The task of the jury was to decide on the guilt or absence of guilt of Dr Bawa‐Garba having regard to her past conduct. The task of the Tribunal, looking to the future, was to decide what sanction would most appropriately meet the statutory objective of protecting the public…

English law is found in the decisions of courts, in Acts of Parliament, and in statutory regulations made by authority of Parliament. Ethical rules are more difficult to discover. There are generally held to be four basic principles to which health professionals should adhere: beneficence (the duty to do good), non‐maleficence (the duty to do no harm), autonomy (the right to self‐determination of the patient) and justice (the duty to be fair and not to discriminate on grounds of sex, race, age and so on). Both the medical and nursing professions publish guidance to their members in fairly general terms, as do other regulators of the healthcare professions. The GMC publishes Good Medical Practice (2019), which is under constant review. The NMC has produced a Code of Professional Conduct (2018). The Faculty of Occupational Medicine of the Royal College of Physicians has published Ethics Guidance for Occupational Health Practice, the latest edition of which dates from 2018. A further publication, Good Occupational